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Magna Carta’s American Adventure

I spent a good part of the summer of 2015 in England, lecturing on aspects of Magna Carta. It seemed that every town, village, or crossroads with any connection to Magna Carta was celebrating the Charter’s eight hundredth anniversary. It’s not surprising to hear about celebrations in the country that gave birth to Magna Carta. But the question I want to put before you tonight is: why should Americans care? After all, Magna Carta’s origins were a long time ago, in a very distant place, born of a struggle between King John and the barons. Why would an American remember Magna Carta?

When I was very small, one of the authors whose books I came to love was A. A. Milne. You Winnie the Pooh buffs will know about Milne. Perhaps you know Milne’s Now We Are Six. One of the poems in the collection is “King John’s Christmas.” It begins,

King John was not a good man –
He had his little ways.
And sometimes no one spoke to him
For days and days and days.

For a little kid, the idea of being shunned best replica watches – that nobody will speak to you – is really terrible. How could you be so awful that people won’t even talk to you?

Emancipation and Magna Carta

As several Commonwealth Caribbean countries celebrate Emancipation Day tomorrow, it is important to locate the significance of the emotions felt on such an occasion,best replica watches especially in relation to the issue of human rights.

In the British West Indies there was a fundamental dichotomy between the values espoused by the 1215 Magna Carta that was subsequently revised several times, and the construction of slave society. Magna Carta has been celebrated as the foundation stone of many constitutional systems and human rights matrices in a variety of countries. However, in the West Indies, it is apparent that the principles of Magna Carta were not prominent in the history of the region until the preparation of independence constitutions.

The fundamental challenge lay in the failure of British settlers in the British West Indies to apply the principles of Magna Carta to all people in the colonies that were settled, conquered or ceded in the name of the British Crown. Primarily, the laws that were devised to facilitate slavery and the slave trade in the British West Indies regarded African slaves as property and not as people thereby contravening the core principles of Magna Carta.

The attitude of the British imperial courts towards slaves demonstrated the diversion from Magna Carta in the West Indies.

The best example of the racial superiority factor in the approach of British colonial administrators is captured in the following excerpt from the Report by Major E F L Wood who toured the West Indies and British Guiana in 1921-22:

“The whole history of the African population of the West Indies inevitably drives them towards representative institutions fashioned after the British model. Transplanted by the slave trade or other circumstances to foreign soil, losing in the process their social system, language and traditions, and with the exception of some relics of obeah, whatever religion they may have had, they owe everything that they have now, and all that they are, to the British race that first enslaved them, and subsequently to its honour restored to them their freedom. Small wonder if they look for political growth to the only source and pattern that they know, and aspire to share in what has been the peculiarly British gift of representative institutions.”

[Report by the Hon Major E F L Wood, MP (Parliamentary Under Secretary of State for the Colonies) on his visit to the West Indies and British Guiana, December 1921-February 1922, Cmnd. 1679 (1922), p 6].

In framing colonial policy for the British West Indies, this quote from Major Wood (who later became Lord Halifax, the Second World War Foreign Secretary in Winston Churchill’s War Cabinet) highlights the mindset of racial superiority as the basis for engagement.

There were two legal cases that held great significance for the way in which slaves were to be treated during the pre-emancipation period.

The first was the matter of Somerset v Stewart [(1772) 98 ER 499] which established that slavery could not be practiced in England, but left open the issue of whether it could be practiced in other parts of the British Empire by virtue of the ambiguity of the judgment of Lord Mansfield in this regard.

The second was the matter of Gregson v Gilbert [(1783) 3 Doug KB 232] otherwise known as the Zong massacre. In this case an insurance claim involving a slave ship called the Zong was admitted. The insurance claim was for recovery of losses by the shipowners for a loss of cargo when 132 slaves were thrown overboard in order to retain supplies of food and water for those on board. This horrific act was upheld by Lord Mansfield and the owners were later compensated for the loss of the slaves.

The philosophy of regarding African slaves as property and not as people was a core imperial legal philosophy of the pre-emancipation era as highlighted by these two cases.

Even though Emancipation Day would come on August 1, 1834, it is really the advent of human rights in the independence constitutions from 1962 onwards that secure equality and justice for all in the society. Both the Canadian Bill of Rights 1960, in the case of T&T, and the European Convention on Human Rights 1950, in the cases of the other eleven independent countries of the Commonwealth Caribbean, can trace influences from Magna Carta.

In T&T, our constitutional foundation was best captured by Dr Eric Williams at a public meeting on July 19, 1955, in Woodford Square, Port-of-Spain, before he had entered electoral politics, when he said:

“The Colonial Office does not need to examine its second hand colonial constitutions. It has a constitution at hand which it can apply immediately to Trinidad and Tobago. That is the British Constitution. Ladies and gentlemen, I suggest to you that the time has come when the British Constitution, suitably modified, can be applied to Trinidad and Tobago. After all, if the British Constitution is good enough for Great Britain, it should be good enough for Trinidad and Tobago.”

It is within this model that our human rights provisions were subsequently included for the independence Constitution.

June 22, 2016

Terrorism and Tolerance – David Anderson QC

‘Terrorism and Tolerance‘, Royal Holloway, University of London. 13th June. David Anderson QC, Speaker. The first in the Fairhaven Lecture series.

1. It is an extraordinary honour to have been asked to give the Magna Carta Lecture, particularly in the first year of the Law School at Royal Holloway. I have nothing to add to the torrent of scholarship, some of it penned by judges, that accompanied last year’s 800th anniversary of the Great Charter. But barristers who live and work in the Temple count as a neighbour someone who is my hero of that time: William Marshal, the commoner who made his name and his fortune as a tournament champion on the European mainland before becoming Earl of Pembroke and the power behind five English kings, the most disastrous of them King John.

2. Marshal was a key figure at the time of Magna Carta. His latest biographer states that he “may have encouraged continued discussion and moderation on both sides in the months that led up to Runnymede”.

CATHOLICISM IN 19TH CENTURY ENGLAND

3. Fast forward – not 800 but 600 years, to the end of the Napoleonic Wars, the start of a period when the history of this country was touched by a combination of phenomena familiar today: mass immigration,religious difference (though at that time between Christians of the Catholic and Protestant persuasion), disputes about civil liberties, and terrorism.

4. The indigenous Roman Catholic population, already augmented by refugees from the French Revolution, was swelled by Irish labourers who came to build the canals, railways and ships of an industrialising Britain. This came against a background of gradually improving civil rights for Catholics, culminating in the Roman Catholic Relief Act 1829, which permitted Catholics to sit in Parliament and repealed the Test Acts that for more than 150 years had required persons filling civil and military offices to swear an oath declaring that they did not subscribe to the Catholic doctrine of transsubstantiation. Then in 1845 to 1847 came potato blight in Ireland, and in its wake starvation. Hundreds of thousands of Irish people came to England and Scotland in just a few years, massively increasing the size of a Catholic population that at the other end of the social scale was already experiencing intellectual revival as a consequence of the Oxford Movement and some high-profile conversions.

5. But the combination of immigration and emancipation was a threatening one to the majority population. A previous liberalising measure, the Papists Act 1778, which allowed loyal Catholics among other things to keep schools and join the army, triggered the Gordon Riots of 1780. These saw a crowd of around 50,000 people marching on Parliament with banners proclaiming “No Popery”, and the destruction of Catholic churches, chapels and homes. Among the causes of the riots were fears, fomented by the Protestant Association, that armed Catholics could function as a fifth column in the wars then being fought with France and Spain.

The majority population felt threatened, even at its moment of greatest confidence, by the resurgence of Catholicism in the midnineteenth century. When Pope Pius IX responded to the increased strength of English Catholicism by re-establishing the Catholic ecclesiastical hierarchy in 1850, Britain was at peace, and about to celebrate the zenith of its industrial power at the Great Exhibition of 1851. But the initiative was dubbed the “Papal Aggression” and met with furious hostility.

Francis Close, a Protestant clergyman in Cheltenham, was concerned about a Catholic takeover: “We give them civil and religious liberty usque ad nauseam, and yet they go on bit by bit … until at length comes a scarlet cardinal to take possession of the land. This is Romish gratitude.”

8. Later in the century, anti-Catholic feeling – and its close companion, anti-Irish feeling – were further fuelled by what we would now call terrorist incidents, notably the bombing at Clerkenwell prison that killed 12 people in 1867, and the Fenian Dynamite Campaign of 1881 to 1885, which saw bombs explode in army barracks, on the London Underground, at the offices of the Times newspaper and the headquarters of the Metropolitan Police, in Westminster Hall and in the chamber of the House of Commons.

9. Particularly sinister, as it seemed then, were the international connections of these bombers: a feature also of previous terrorist atrocities including the Gunpowder Plot of 1605, some of whose ringleaders had been educated abroad and whose explosives expert, Guy Fawkes, had served as a foreign mercenary for the King of Spain. Some of the 19th century Fenian bombers had learned their trade in New York, at the Brooklyn Dynamite School, or from US periodicals, published under First Amendment freedoms, such as the boldly-named “Ireland’s Liberator and Dynamite Monthly”. That publication, in precisely the manner of modern propaganda manuals such as Al-Qaida’s Inspire and Da’esh’s Dabiq, contained articles on the manufacture of bombs but urged readers without access to such materials to act by any means available to them: the bullet, the knife, or the “simple sulphur match”.

10.How did it feel to be an adherent of the minority faith? Some good evidence is provided by John Henry Newman, a high-profile convert to Catholicism and the leader of the Oxford Movement. In a celebrated lecture given in 1851, he enquired:

“ … why it is that, in this intelligent nation, and in this rational nineteenth century, we Catholics are so despised and hated by our own countrymen, with whom we have lived all our lives, that they are prompt to believe any story, however extravagant, that is told to our disadvantage … I am not enquiring why they are not Catholics themselves, but why they are so angry with those who are.”

11.And this is what he concluded:

“Catholics are treated with scorn and injustice simply because, although they have a good deal to say in their defence, they have never patiently been heard. … [N]o conceivable absurdities can surpass the absurdities which are firmly believed of Catholics by sensible, kind-hearted, well intentioned Protestants. Such is the consequence of having looked at things all on one side, and shutting eyes to the other. … [The Catholic Church] is considered too absurd to be inquired into, and too corrupt to be defended, and too dangerous to be treated with equity and fair dealing. She is the victim of a prejudice which perpetuates itself, and gives birth to what it feeds on.”

TERRORISM, RELIGION AND IMMIGRATION

12.Of course history does not repeat itself: but it can sometimes put the present in perspective. It is hard to pick up a paper or visit a news site without being reminded that immigration, terrorism and a controversial religious minority – though now Muslims rather than Catholics, in Great Britain, at least – are prominent issues today. Indeed alone and in toxic combination, they sometimes seem to dominate the public discourse.

13.Only a fool would play down the seriousness of the risk from terrorism, or the fact that some of it is perpetrated in the name of Islam.

a. Together with the insurrections and civil wars into which it often shades, it kills tens of thousands of people every year in Africa, Asia and the Middle East. The great majority of them are Muslims killed by Muslims. But some are the victims of other religious extremists,vi or of ethnic, separatist or nationalist conflicts in different parts of the world. And others – like the 30 British tourists gunned down on a Tunisian beach last year – are targeted by Islamists because they come from the West.

b. Recent Islamist attacks in France, Denmark and Belgium have reminded us that terrorism is particularly shocking when it constitutes an ideological attack on values that society holds dear: we have seen people killed close to our shores in the past 18 months for satirising religion, for enjoying music, for discussing free speech or simply for being Jewish or happening to find themselves near the political heart of Europe. And in Orlando on Saturday night, we appear to have seen 49 people killed for their sexuality.

c. Of the same character was the slaughter by self-described “cultural Christian” Anders Breivik of 77 people in 2011, most of them associated with a Norwegian political party that in his view was assisting the Islamisation of Western Europe. A reminder that “do it yourself” terrorism can be as deadly as a meticulously coordinated assault; that it can be more difficult to detect; and that militant Islam has no monopoly on ideologies that dehumanise the other and so justify the killing of people who hold the wrong ideas.

d. I heard for myself the fear and apprehension that infected Muslims in the West Midlands in 2013, before police were able to pin the murder of Mohammed Saleem and a sequence of Friday mosque-bombings on the white supremacist, Pavlo Lapshyn.

Far-right extremism does not have the global reach or organisation of militant Islam, and does not kill nearly as many people. But no sensible observer of the current political scene in Europe or America would discount it as a potential threat. The danger of far-right terrorism lies not just in the direct threat it poses to life and property, but in its capacity to operate symbiotically with the Islamist variety, each being used to support the grievance narrative of those who seek to persuade the other that the world is against them and they need to fight back.

15. The scholar of terrorism Brian Jenkins said in 1975 that the aim of the terrorist was “a lot of people watching, not a lot of people dead”. If that
is what militant Islam is trying to achieve in the West, it has been spectacularly successful. Since 9/11, terrorism has killed fewer than 60 people in Great Britain, only two of them in the past 10 years. Even in Spain and France, which have suffered the largest number of casualties in that period, mortality since 2001 has been in the low hundreds. In the United States, terrorist shootings, even after the terrible recent events in Orlando, constitute a small fraction of 1% of firearms-related homicides. But people are certainly watching – and they are afraid.

16.Here is what former Senator Liebermann had to say in December of last year about the threat of radical Islamist terrorism to the United States: he rated it as “the most significant threat” that the American people faced, not only to their security but to their civilisation.

17.And he seems to have been speaking for his country. Asked to list the most critical threats to the US over the next decade, Americans polled by Gallup this year put international terrorism first – ahead of Iranian nuclear weapons, the Syrian conflict, North Korea, global warming, China and Russia.

18.Nor, it would seem, are Europeans so different. A recent Eurobarometer poll asked Europeans which were the two most important issues facing the EU at the moment. Immigration was the runaway leader. But terrorism came in second place, edging out the economic situation.

19.In achieving those spectacular results, the terrorists are assisted by media which have either forgotten that terrorism is “propaganda of the deed”, as the 19th century anarchists put it, or do not care that they are spreading propaganda of the word or indeed of the picture. Here is one example, graphically combining images of medieval execution and the injustices of Guantanamo. Demonstrating that while journalists are not usually terrorist sympathisers, the interests of the two groups can be very closely aligned.

20. Or look at the killing of Lee Rigby: one of 187 murders by knife or bladed instrument that year in England and Wales, but one whose aftermath made it notorious across the world. The murderers did not run away: one of them ensured that he was filmed in the most gruesome pose possible; faithfully reproduced of course on mass media; used for propaganda purposes; provoking fear and defiance – this taken at a march following the killing, and religious hatred – from the same march; and finally vicious polarisation. I’m not sure what the worst thing is about that slide – maybe the 105 likes.

21.Nor do the mass media content themselves with giving the terrorist publicity. They go along also with the terrorist’s broader objective of sowing suspicion, encouraging division and sending integration into reverse.

22.This is hardly new. | Here is the Nazi newspaper Der Stürmer, perpetuating the racist prejudice of the Jew as scheming sexual aggressor. Here, from the Second World War, is a cartoon characterising Japanese Americans as fifth columnists, lining up to collect their packages of explosive. And in the same vile tradition, I would argue, is a cartoon published by the Daily Mail, shortly after the Paris attacks of last November. The image does a pretty effective job of conflating Islam, immigration, the terrorist threat – for one of them is carrying a gun – and, in case we were in any doubt about what to think of them, rats.

23.And I’m afraid politicians, following as so often the media lead, are themselves capable of perpetuating the damaging confusion between terrorism, immigration and Islam. One can think of many reasons why it is good for women in immigrant families to learn English: but must the issue be linked specifically with Muslims and with the fight against Da’esh? And for those using the issue of immigration to argue for Brexit, the stereotypes of the over-industrious Pole and the lazy Romanian have their uses, but lack the popular resonance in the notion of the guntoting, sexually aggressive Muslim, fresh from the Middle East, whose entry is supposedly – though incomprehensibly, at least to me – facilitated by our EU membership.
MUSLIMS IN BRITAIN

24.So remembering Newman’s words about being a Catholic, how does it feel to be a Muslim in present-day Britain? My impressions on that score should be heavily discounted, because they are second or thirdhand. But I do have the privilege of talking not just to British Muslim friends, colleagues and leaders but to other members of Britain’s numerous and varied Muslim communities – a privilege because despite a job title that could almost have been designed to put them off, I find them unfailingly polite, generous and hospitable.

a. They tell me, as they have told a number of surveys, that they feel overwhelmingly British, that they are happy to obey British law
and that Britain is one of the best places in the world – perhaps even the best place in the world – to be a Muslim.

b. They are relatively optimistic about the process of integration, evoking in my mind role models ranging from the Siddiqui family, understated stars of Gogglebox, and Nadiya Hussain, winner of the Great British Bake-Off to the Mayor of London and Mo Farah, the most decorated person in the history of British athletics. Only 20% of British Muslims polled last year for the Today Programme believed that “western society can never be
compatible with Islam”, as against 56% of the general population, readers perhaps of the popular press, who expressed similar views to YouGov at about the same time.vii If it is true, as Channel 4 reported earlier this year, that 20% of Muslims had not been in a non-Muslim’s house over the past year, it might have been pertinent to ask whether anyone invited them.

c. British Muslims are bewildered by the incessant “them and us” headlines of the tabloid press; dispirited by the constant references to terrorism committed in the name of their religion but unconnected with what they see as any true version of it; wary of Government policies which are seen as spying on them or discriminating against them; and alarmed by the hatred and abuse that are directed to Muslims, particularly, as the statistics show, in the aftermath of a major atrocity somewhere in the western world. Perhaps they would agree that Islam, as Cardinal Newman said of the Catholic Church, “is the victim of a prejudice which perpetuates itself, and gives birth to what it feeds on”.

25.And many I suspect would agree with me that Trevor Phillips, former head of the Equalities and Human Rights Commission, was painting an exaggerated picture when he said in a Channel 4 programme earlier this year that British Muslims’ centre of gravity is “some distance away from the centre of gravity of everyone else’s”, that they “basically do not want to participate in the way that other people do”, and even that they constitute a “nation within a nation”. Such conclusions are, perhaps, the product of surveys that focus on areas most likely to show difference,
and ignore the huge amount that we all have in common.

26.When I travel around the country I see inspiring examples of youth clubs and neighbourhoods putting integration in practice, and of schools and NGOs teaching the critical thinking skills that are so important if the false certainties of the fundamentalist are to be rejected or at least seen in perspective.

27.But there is bad as well as good in all sections of society; and it would not be honest to describe British Islam without reference to the fact that
to varying degrees, a minority of its members are profoundly opposed to core values such as democracy, equal treatment, the Rule of Law, diversity, pluralism and tolerance. In extreme cases they may even be prepared to approve violence against that of which they disapprove.

28.The way in which some terrorists who claim the authority of Islam feed off religiously conservative and socially regressive attitudes was recently
expressed by Lord Pannick QC as follows: “The opponents of a liberal society are not interested in science and enlightenment. They know all the answers, or how to find them. They deprecate any study which may challenge their religious beliefs. They believe that women should not be educated, should have no role in public life and must comply with a strict dress code. They advocate, and implement, the death penalty for homosexuals, adulterers, and anyone who leaves their religion, and anyone who publishes a cartoon or other depiction of their God. They cut the heads off aid workers whom they capture, and post horrific videos on the internet. They blow up ancient monuments because they despise any culture other than their own.”

29.Polling suggests that overt support for terrorism is very low: but that disturbingly large minorities are prepared at least in theory to countenance a violent response to those who publish images of the prophet Muhammad, or to so-called apostates who convert from Islam. Opinions of course are cheap, and rarely translate into deeds. But the fatwa against Salman Rushdie, the Charlie Hebdo killings, attitudes in Pakistan to Ahmadiyya Muslims and the hacking to death of secular bloggers in Bangladesh, each of which has echoed, faintly or otherwise, in Britain, are completely inimical to any notion of liberal values or universal human rights.

30.Yet shockingly, many of those “opponents of a liberal society” grew up in one. The great majority of terrorists convicted in Great Britain over the
past 15 years have been bred here, including the London bombers of 2005. One of them, Shehzad Tanweer, worked in a fish and chip shop in his native Yorkshire, and played his usual game of cricket on the evening before he killed seven people, and himself, on a Circle Line train.

31.Mental illness, and social and economic exclusion, are relevant factors in some cases but by no means a sufficient explanation. There is a substantial minority of university students and graduates among British perpetrators of terrorist acts, not dissimilar to their representation in that age cohort generally. They include: a. the underpants bomber Umar Farouk Abdulmutallab, a graduate of University College London; b. Roshonara Choudhry, who stabbed the MP Stephen Timms shortly after dropping out of King’s College London; and c. Tarik Hassane, the Briton studying medicine at the University of Khartoum, who pleaded guilty earlier this year to plotting Da’eshinspired drive-by shootings in London with Suhaib Majeed, a physics student who was convicted by a jury in April. Abdulmutallab and Majeed were reported to have been, respectively, the President of the University College Islamic Society and the Chairman of the King’s College Islamic Society.

32.So British Muslims face Islamophobia: but they also have other problems.

a. The vast majority, including those who could be described as religiously conservative, want nothing more than to look after their families and contribute to the life of the country where almost half of them now were born.

b. But there comes a point where religious conservatism shades into socially regressive attitudes – in particular towards women and
those who depart from rigid sexual norms, but also towards those of other faiths or of none.

c. And those attitudes sometimes find coercive or violent expression – whether in terms of FGM, forced marriage, domestic violence, sexual abuse, so-called honour-based violence or terrorism. None of these problems are unique to Muslims; some are cultural rather than religious in origin; and domestic violence and sexual abuse are extremely widespread. But the most acute of them, or at least the highest profile, is terrorism perpetrated in the name of Islam.

33.The Prime Minister last year described extremist ideology, by which he meant Islamist extremism, as the “struggle of our generation”, adding that we must pursue this struggle in the spirit with which we “faced down Hitler” and “defeated Communism”. Not everyone would go so far as to characterise Islamist extremism an existential threat, even when it is manifested through sporadic acts of terrorism on western soil. Nor would it be right to characterise the transition from non-violent to violent extremism as any sort of automatic conveyor belt – though there are certainly many terrorists who have made that journey. But there can be no doubt that when behaviour is fuelled by extremist ideology, adverse consequences can follow both for community integration and for public safety. What should we do about it?

KNOWING WHAT TO TOLERATE
34.Central to this dilemma is the language of tolerance. Tolerance is not the most inspiring of virtues. It is practised, after all, as putting up with
things, or with people, that we don’t really like. But as expressed in the phrase live and let live, it is something we have traditionally been good at in this country. And it is a gateway virtue: a staging post to the higher objectives of integration and trust.

35.Too much tolerance can be as dangerous as too little. Some things need to be tolerated, and some things need not to be tolerated. The question is, which things fall into each category?

36. You will be relieved to hear that no comprehensive answer to that question will be given this evening. But I will suggest a couple of guiding principles, neither of which is always appreciated as widely as it should be. I call them confidence and humility.

Confidence
37.Confidence consists, first of all, in knowing what we stand for. As the nation state gives way to what Philip Bobbittxi has described as the market state – one whose purpose is not to nurture a national identity but simply to ensure an adequate life for those who at any given time find themselves within its boundaries – moral relativism takes over and bright lines become harder to draw. People resent newcomers who do not conform to their customs, but are unsure which of their values they are allowed to defend, and which must give way to the perceived demands of multiculturalism or human rights. Too often, the wrong answers are found. Perhaps the newcomer will be told that he must fully assimilate to be accepted. Or, conversely, a blind eye may be turned to practices that ought to be firmly clamped down on.

Democratic values
38. The starting point, for me, is that this country stands for democratic values. Unusually, and in my view regrettably, the United Kingdom lacks a written constitution to spell them out. But the nub of the matter is that the UK is a democracy founded upon the rule of law.

39.Inherent in the rule of law, as classically defined by the great judge Lord Bingham, is adequate protection of internationally guaranteed fundamental human rights.

40.But vital as fundamental rights are, they can in important respects be qualified in the interests of democracy – which means, in this context, far more than simply the rule of the majority. As the European Court of Human Rights has often said, initially in cases argued by British lawyers, there can be no democratic society without “pluralism, tolerance and broad-mindedness”.

41.To see what this means in practice, take the freedom of thought, conscience and religion guaranteed by Article 9 of the European Convention. There is an absolute right to believe what you like, to change that belief, and to share your beliefs with like-minded people. But you may be prohibited from putting your beliefs into practice in a way that impinges on others, when it can be established that prohibition is necessary in a democratic society.

42.There are frequent reminders from the courts that theocracy is not compatible with democracy, and that to say “It’s my religion” is not enough to win a reprieve from the law of the land:

a. Our own senior court, then known as the House of Lords, held in 2005 that the state could prohibit the use of corporal punishment
in private schools, notwithstanding the beliefs of some Christian teachers and parents in its moral value.

b. The Court of Appeal, differing from the High Court, required my former client, Shambo the sacred Welsh bullock, to be slaughtered because his TB diagnosis made this necessary in the interests of public health, notwithstanding Shambo’s religious significance to his Hindu owners. (When I commiserated with them on Shambo’s death, they were able to console me: most probably, they told me, he had already been reincarnated.)
c. And in 2014 the European Court went so far as to rule, by a majority, that the French Government was justified in banning the wearing of the niqab or full-face veil in public places, in the interests of what was described as “the right of others” – in other words, the non-niqabi people of France, “to live in a space of socialisation which makes living together easier”. Governments were not obliged to ban the niqab, of course: there are no plans for such a wide-ranging prohibition in the UK, and for myself I rather hope there never will be. But France was entitled to do so in the interests of maintaining a democracy in which people “live together”.

43.An earlier and even more striking case concerned the dissolution by the Turkish Government of a political party whose poll ratings were such that it had (at the time of dissolution) what the European Court of Human Rights described as “a real potential to seize political power”. It was dissolved because it had a policy of introducing shari’a law for Turkey’s Muslims. The Court found no violation of the freedom of association, commenting that “Shari’a is incompatible with the fundamental principles of democracy”, and that contracting states were entitled to oppose “political movements based on religious fundamentalism”, in the light of their historical experience.

44.As the Court pronounced: “No one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society.” Or in the even pithier paraphrase of a United States Supreme Court opinion from 1949: “Democracy is not a suicide pact”.
45.Once again, you are not obliged to ban political parties that seek to use democracy in order to subvert its values. We survived the Cold War without banning the Communist Party: and a good thing too, since as another American judge once put it, “the power of reason as applied through public discussion” is preferable to “silence coerced by law”.

46.But these cases are a reminder that where democratic values are truly under threat, tolerance has its limits. Islam must be tolerated in the same way as other belief systems: but in return, as Matthew Wilkinson of the Cambridge Muslim College has written, it must adapt to being “one legitimate faith among many legally equivalent faiths”, with the Shari’a existing as “a code of personal religious conduct rather than constituting the legal framework for the whole or even part of society”.

47.These cases are also a corrective to those who falsely claim that human rights tie our hands behind our backs by requiring us to tolerate the intolerant, however threatening. Rather than hamper the fight against terrorism and extremism, they underline its legitimacy: a point underlined by – on my count – six successive judgments of the European Court of Human Rights, since 2010, which have upheld different features of the powers used against terrorism in the UK.

Application of the law
48.There is a second aspect to confidence: being unafraid to apply the laws we have. For various reasons, many of them understandable, that has not always been the case.

49.In the 1990s and afterwards, strong traditions of individual liberty, combined with ignorance or complacency, led to the excessive tolerance of what frustrated French officials dubbed Londonistan: the freedom of men such as Abu Qatada, Omar Bakri Mohammed and Abu Hamza and their followers to come to Britain and incite murder, radicalise the young, finance violent jihad and even train people for it on British soil.

50.We should never discount the risk of racism or discrimination against Muslims by authorities, including police forces, that are overwhelmingly white and non-Muslim. But their behaviour may also be distorted by fear of being accused of racism. An independent report of 2014 into child sexual abuse and trafficking in Rotherham by men of Pakistani heritage reported councillors as saying that they had not drawn attention to what was going on, because to do so could be perceived as: “’giving oxygen’ to racist perspectives that might in turn attract extremist political groups and threaten community cohesion.”

The consequence of this misplaced fear of encouraging racism may have been not only the prolongation of organised abuse that affected, at a conservative estimate, 1400 victims over 16 years, but the worsening of precisely the community cohesion that the councillors had been trying to protect.

51.In relation to similar long-term abuse in Rochdale, the MP Ann Cryer told the BBC that despite her requests, “neither the police nor social services
would touch those cases…I think it was they were afraid of being called racist.” In 2015, the Greater Manchester Police apologised for their failure to investigate the allegations more thoroughly.

52.Police and other authorities naturally wish to keep up their contacts in local communities – contacts which they find useful in everything from managing community tensions to delivering the Prevent strategy. But this must not come at the expense of enforcing the law without fear or favour. The vulnerable people in any community may be precisely those for whom the “community leaders” do not speak, those described by Maajid Nawaz as “minorities within minorities”: the ex-Muslim, the woman who chooses not to dress as her family wishes, the sexually unorthodox, the Muslim who dares speak out about malpractice.

Humility
53.The balancing principle to confidence is humility: an acceptance that there are limits to what the state can or should do, and positive dangers in seeking to do too much.

54.In the 1850s, where we began this evening, there was no law against terrorism or incitement to religious hatred, only the most basic of protection against discrimination, no apparatus for state surveillance, no International Covenant or European Convention of Human Rights, no such thing as a cohesion, integration or counter-extremism strategy. The vast growth over the past 100 years in government, in legislation and in popular expectations of both, have furnished legal and policy levers whose existence could not have been dreamed of in those days. But that does not mean that all thse levers are useful, or should be used. Humility allows us to see that some of them may not work, that some may make things worse; and that sometimes – as, happily, with the antiCatholic prejudice that was so strong in England in the mid-19th century – problems recede not because anyone solves them but because of the passage of time and, very often, the intervention of new and more pressing problems.

55.The battle for hearts and minds is an area in which actions, if not correctly judged, are particularly liable to backfire. Once you seek to apply the law to conduct that poses no direct threat to the life, wellbeing or property of others, you begin to intrude into the way that people who would not normally be classed as criminals live their everyday lives. If you are not very careful, those people will perceive you as spying on them; picking on them; penalising activities that cause no harm to others; challenging the core tenets of their faith or their personal morality. And if things get to that point, you may actually be worsening the problem you are seeking to cure.

56.The difficulty here is not with the counter-terrorism laws, even though they feature a number of “precursor crimes” which can be committed before there is any attempt, conspiracy or incitement to commit an act of terrorism: these include encouragement of terrorism, direct or indirect; disseminating terrorist materials; preparing acts of terrorism; and attending a training camp. Nor, even, is the problem with the Public Order Act 1984, whose most oppressive feature – the criminalisation of insulting words likely to cause alarm or distress, which resulted in the conviction of a street preacher whose only offence was to hold a placard pronouncing homosexuality to be evil – was repealed in 2014.

57.Rather, and counter-intuitively perhaps, controversy tends to attach to well-intentioned measures with a safeguarding purpose. I will mention three.
Use of the family courts.

58.The first is a remarkable development of the past two years: the spate of cases in which child care authorities have sought to use the Family Division of the High Court to protect children at risk of radicalisation.

59.Most straightforward are the cases in which the court has agreed to a measure which will prevent children from going to Syria or being taken there: normally, making the child a ward of court and removing his or her passport. In some cases, the court has gone further: preventing the whole family from travelling out, or ordering them to be brought back after they have left. But in one case, the court concluded that the only way to protect a 16-year-old girl who had been intercepted prior to take-off was to remove her from her devious and highly radicalised parents into institutional care. Comparing the risk from their extremist beliefs to the risk of sexual abuse, the Court held: “If it were a sexual risk that were here being contemplated, I do not believe that any professional would advocate such a placement for a moment. The violation contemplated here is not to the body but it is to the mind. It is every bit as insidious, and I do not say that lightly. It involves harm of similar magnitude and complexion.”

60.I don’t dispute that analysis. But for the State to remove a child from its parents because it does not like the ideas that they are planting in the
child’s mind is at least deserving of debate. As the Supreme Court Justice Baroness Hale said in a recent lecture (and I am grateful to her for pointing me to these cases), this is an important development, and one to be treated with great caution.

Prevent
61.Humility is in order also when it comes to the Prevent strategy: the Government’s programme to combat radicalisation in environments ranging from the nursery school to the prison. Prevent has already been reformed, in 2011 when its range was expanded from violent extremism to non-violent extremism, and in 2015 when a wide range of public authorities were placed under a statutory duty to “have due regard to the need to prevent people from being drawn into terrorism”.

62.One might have thought that safeguarding of this nature was an appropriate task for Government at least to attempt. But in my experience, Prevent now attracts more suspicion from Muslims than all the counter-terrorism laws put together. Particularly controversial is the application of the Prevent duty in schools, which if their evidence to me is to be believed, has caused risk-averse teachers to close down healthy discussion of terrorism in school and risk-averse parents, worried about what their child might say the next day, to do the same thing at home. Also subject to criticism has been the Prevent guidance to universities, which requires them carefully to consider whether views expressed by a visiting speaker “constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups”, and if so, requires them to cancel the event unless they are “entirely convinced” that the risk can be “fully mitigated” by other means: a high hurdle indeed.

63.I do not review the operation of Prevent. I observe the suspicions that attend some of its aspects, but don’t pass judgement on whether they are the product of poor implementation, whether they have been stirred up by people who are trying to promote grievance, or whether they are simply the product of insufficient engagement with those affected.

64.Some have argued that Prevent needs to be replaced, reformed or removed altogether from the counter-terrorism space and treated instead as simply one aspect of safeguarding, along with initiatives against gangs, substance abuse, sexual exploitation and so on. Whether that is the future or not, humility suggests that there should be more transparency around Prevent, more consultation with the communities to whom it applies, and – I would add – regular independent review of the sort that is already provided for the counter-terrorism laws.

Counter-Extremism Bill
65.Finally, I mention the long-promised Bill aimed at countering extremism. As initially trailed in the Queen’s Speech before last, this Bill was to
provide for a number of coercive measures by which “extremist activity” could be curtailed: banning orders for extremist organisations; extremist disruption orders to restrict the harmful activities of extremist individuals; and closure orders, to close down premises used to support extremism.

66.My concerns about this proposal were expressed in a report of last September, in the form of 15 questions that I suggested Parliament might want to ask about it. I was concerned by the breadth of the concept of extremism, and the effect of such a law on people who were not its targets. As I argued:

“If it becomes a function of the state to identify which individuals are engaged in, or exposed to, a broad range of extremist activity, it will become legitimate for the state to scrutinise (and the citizen to inform upon) the core exercise of democratic freedoms by large numbers of law-abiding people.”

67.The Bill was promised again in last month’s Queen’s Speech, though with with the welcome rider that there would be consultation on at least some aspects of it. We will see what comes of that. Only by tempering confidence with humility, I would suggest, do we stand a chance of winning the struggle to unite people of good will in rejecting the corrosive and dangerous elements on the extremes.

June 20, 2016

Magna Carta & Australia – HE Alexander Downer

This Magna Carta Lecture was delivered by HE the Hon Alexander Downer, Australian High Commissioner to the United Kingdom, at Lincoln Cathedral; Wednesday 1 June 2016.

• It is both an honour and a pleasure to be invited by Lord Cormack to give this year’s Magna Carta lecture.

• I follow in the footsteps of some very eminent and distinguished speakers, in what has become a fifteen-year tradition, including:

o Professor Lord Norton of Louth

o Lord Phillips, First President of the Supreme Court

o Professor Nicholas Vincent, and

o Lord Judge, former Lord Chief Justice.

• As we all take in our beautiful surroundings, I must start my lecture by acknowledging the historical significance of Lincoln Cathedral—our host for this evening.

• It has been said that ‘in a sense, Lincoln is where Magna Carta starts and ends.’

• Indeed, Lincolnshire’s Cardinal Archbishop Stephen Langton, who studied at the schools of Lincoln Cathedral, is credited with influencing the terms of Magna Carta.

Both Stephen Langton and the Bishop of Lincoln, Hugh of Wells, were present at Runnymede.

• Now, 800 years later, Lincoln Cathedral has one of only four surviving copies of the original 1215 Magna Carta, which I understand is now securely displayed at Lincoln Castle. Two are held at the British Library and the other, at Salsbury Cathedral.

• This leads me to reflect on how Australia came to own a 1297 version of Magna Carta—it is an extraordinary story.

• In 1936, after 639 years, our version was discovered by a schoolmaster in a desk at King’s School in Somerset.

• Fortunately for Australia, the governors of the school decided to sell it, to raise much-needed funds.

• The British Museum could not meet the asking price and only offered to pay 2000 pounds.

• The school’s preference was for it to be passed on to a British dominion —so Australia had a ‘head start’ over American interests.

• We understand that it was offered to our National Library’s London Office, via Sotheby’s.

• Our then Prime Minister, Robert Menzies supported the purchase, and even agreed to seek funds from prominent friends of the Library in London, such as Howard Florey and Lord Baillieu, via Sir Leslie Boyce, the Australian-born lord major of London.

Magna Carta and Comparative Bills of Rights in Europe

It is an honour to be part of this celebration, commemorating the 800th anniversary of the Magna Carta, an iconic document which has become a symbol of liberty and the rule of law on both sided of the Atlantic. Within Europe, the text of the Magna Carta has come to express a common constitutional heritage. Textbooks and treaties on civil rights and liberties throughout Europe invariably refer to the Magna Carta as a foundational document of fundamental right, showing that the Charter’s reach goes well beyond its country of origin.

The aim of this short contribution is not to trace the actual – direct or indirect – influence of the Magna Carta on the constitutions and their Bill of Rights of the various Member States of the Council of Europe. Such endeavour would be a daunting task indeed. Ideas travel across space and time; they evolve, are reinterpreted and transformed in this process. We would first need to establish the original meaning of the Charter, i.e. what it meant in the specific context of its time. We would then need to retrace the long trajectory of the ideas expressed in the Charter, their journey over the Atlantic, and the Charter’s impact on the founding fathers of the United States Constitution. We would thereafter need to explore the Magna Carta’s reception in various parts of the European continent, partly via the influence of the US constitution. This would be a task for which a constitutional lawyer may not be well equipped.

The contemporary relevance of the Magna Carta is not only dependent on its direct or indirect imprint on modern constitutions. The Magna Carta hugely matters because of its symbolic value, and because its ideas still resonates with us today. I will adopt a contemporary reading of the Magna Carta, highlighting its resonance and the principles it has come to embody. This approach treats the Magna Carta like a living tree, and not as a document the meaning of which is fixed in time. Put differently, it rejects an originalist reading, privileging a dynamic interpretation. This is an approach many domestic Courts – and most prominently the European Court of Human Rights – adopt when they are called upon to construe the meaning of fundamental rights provisions.

The clause of the Magna Carta which without doubt has had the strongest resonance is almost too well known to be cited:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

The famous clause 39 has become the embodiment of two powerful and connected principles: Firstly, personal freedom, consisting mainly of, but not limited to, the right to liberty and security, and secondly, the rule of law and due process of law. Together, these principles form a bulwark against arbitrary rule. The limits of personal freedom can only be determined by law and not by the capricious will of the sovereign.

The idea of freedom under the law has been reasserted in the following Centuries, prominently in the Declaration of Rights of Man and Citizen of 1789, which is nowadays part of the French Constitution and upheld by the French Constitutional Council. Art. 7 protects specifically the right of liberty and security, holding that “[n]o person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law.” Other provisions, mainly Art. 4 and 5, protect personal freedom more generally, stating that the limits to liberty can only be determined by law, and that “nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.”

Freedom under the law forms part of the common constitutional tradition reflected in Bills of Rights, in Europe and beyond. In addition to specific provisions on the right to liberty and security, constitutions require, either in specific or in general limitation clauses, that restrictions of fundamental rights need to be prescribed by law. We find this requirement also in the Charter of Fundamental Rights of the European Union, which can be viewed as codifiying common constitutional traditions of the EU Member States. According to Art. 52 para. 1 of the EU Charter, “[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law.”

Beyond the protection of individual rights, the Magna Carta contains the seed of the more general principle of the rule of law, or its German or French counterpart, the ‘Rechtsstaat’ or the ‘Etat de droit’. This more general principle can be derived from the precept reflected in clause 39 of the of the Magna Carta that the King is not above the law but bound by law.

European constitutions underscore that the rule of law is a central element of a legitimate constitutional order. Virtually all European constitutions explicitly refer to rule of law principles. A prominent example is the German Basic Law, adopted in 1949, in the aftermath of Word War. But also more recent constitutions, in particularly those adopted against the backdrop of totalitarian or authoritarian past, invariably commit to the Rule of Law. To name just one example : The Constitution of Serbia holds in Art. 1 that the Republic of Serbia is a state “based on the Rule of Law”, and Art. 3 holds that “the rule of law is a fundamental prerequisite for the Constitution which is based on inalienable human rights.”

Apart from the Rule of Law, the Magna Carta is also an evocative document for us today, because it has come to embody the very idea of a modern Constitution: it represents, in Sandra Day O’Connor’s words, the “written embodiment of fundamental laws », « the more general notion of a written statement of fundamental law binding upon the sovereign state.”

The fundamental nature of the principles enshrined in the Magna Carta, and their written form, have earned the Magna Carta the attribute of the “world’s first written constitution”. This understanding of the Magna Carta resonates in the famous judgment Marbury v. Madison, describing the constitution as “superior, paramount law, unchangeable by ordinary means”, and implying that laws clashing with the constitution are null and void. As is well-known, Marbury v. Madison founded the Supreme Court’s power of judicial review. In Europe, constitutional review is a much more recent phenomenon. The thinking of Marbury v. Madison has been steadily gaining ground since World War II and has become the dominant paradigm of upholding the rights enshrined in domestic constitutions.

Interestingly, the authors of the Magna Carta also provided for supervisory arrangements aimed at controlling the King. Based on clause 61, a supervisory body representing the Barons had the power to oversee compliance with the Magna Carta and to take in extremis retalitatory measures against the faulty King. Although this mechanism was ineffective, it can be viewed – based on a contemporary reading of the Charter – as expressing the idea of separation of powers : ambition must be made to counteract ambition. Maybe it can even be viewed as an embryonic precursor of judicial review.

The Magna Carta has not only come to embody the concept of a written constitution, of which Bills of Rights are today an essential part. Its provisions also encapsulate ideas which have grown over time into fundamental rights enshrined both in Europe’s contemporary Bill of Rights.

To illustrate this point, let me refer again to the famous clause 39. Apart from the right to personal freedom, clause 39 – together with clause 40 – expresses the idea of procedural due process, fair trial and access to justice. Individual liberty can according to clause 39 only be curtailed through lawful judgments; moreover, precepts of a fair trial and access to justice have to be respected: In the wording of clause 40: “To no one will we sell, to no one deny or delay right or justice.” The idea that justice must be accessible also underpins clause 17, holding that “[c]ommon pleas shall not follow our court but shall be held in some fixed place”.

Clause 45 is complementary to fair trial guarantees and related to judicial independence. It lays down a requirement which has become common place and is mentioned in the Basic Principles on the Independence of the Judiciary, adopted in 1985 within the framework of the UN – the requirement that judges have appropriate training or qualifications in law. Clause 45 reads: “We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.”

Clauses 39 and 40, and the related clauses of the Magna Carta can be viewed as the ancestors of procedural safeguards against arbitrary detention, and the right to a fair trial, enshrined in Art. 5 and 6 ECHR. Corresponding provisions in domestic constitutions have become commonplace on the European continent, mainly through the direct impact of the European Convention.

Another contemporary right which can trace its lineage to Magna Carta is the right to just and proportionate punishment. In the Magna Carta, we find it expressed in clause 20 and 21. The relevant part of clause 20 reads as follows: “for a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.”

A contemporary expression of the right to just and proportionate punishment can be found in Art. 49 para. 3 of the EU Charter of Fundamental Rights, holding that the The EU Charter holds that “[t]he severity of penalties must not be disproportionate to the criminal offence”.

The Constitution of Cyprus contains a similar provision. In addition to these explicit guarantees, the right not to be subject to disproportionate punishment is implied in the prohibition of inhuman and degrading penalties. The Vinter judgment of the European Court of Human Rights ruling out incompressible life sentences is a recent link in this chain of development.

Another clause of the Magna Carta which still resonates with us today is clause Clause 42: “In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear (…)”.

Clause 43 also refers to free movement, reflecting economic rationales: “All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs.” Clause 43 evokes to contemporary readers economic liberties, enshrined in many European constitutions under different names (‘occupational freedom’ in Germany, ‘economic freedom’ in Switzerland, ‘liberté d’entreprendre’ » in France). For the EU-Member States, it evokes the four fundamental market freedoms.
Moreover, the Magna Carta contains clauses which regulate the taking of horses, carts, wood, issues of inheritance and guardianship, or the remarriage of widows. These clauses respond to concrete grievances against the King. Abstracted from their specific context, they aim at safeguarding interests protected nowadays by the fundamental rights to property, and the prohibition of forced marriage.

Contemporary Bills of Rights are worded in a more abstract and principled way than the Magna Carta, expressing atemporal and universal principles. Nevertheless, like the many detailed provisions of the Magna Carta, fundamental rights have emerged from history, from grievances against the concrete experience of injustice.

This is clearly expressed in the UDHR, referred to by Eleanor Roosevelt as “the international Magna Carta of all men everywhere.” According to its preamble, the UDHR has been declared, as a reaction to “barbarous acts which have outraged the conscience of mankind”.

Put differently, fundamental rights and freedoms are “Rights from Wrongs” (Alan Dershowitz). They are concrete answers to centuries’ old experience of injustice and human suffering which have shaped our understanding and the meaning of human dignity. The insight that human rights are deeply rooted in our history makes them fixed stars to navigate by at difficult times. The star of the Magna Carta has been shining, for instance, in the context of the “war against terror”: It has been invoked as a ‘fixed star’, reminding us to remain eternally vigilant when human rights come under pressure and are set aside for security concerns. In the United States, the Magna Carta was referred to in the major cases involving the indefinite detention of enemy combatants, Padilla v. Rumsfeld, Hamdi v. Rumsfeld, and Boumediene v. Bush. In the Boumediene decision, Justice Anthony Kennedy, writing for the majority, referred to Article 39 of the Magna Carta. He held:

“Magna Carta decreed that no man would be imprisoned contrary to the law of the land…Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it…gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.”

Kennedy’s understanding of Magna Carta is to view it as a document whose principles have grown over time. He traces the United States Constitution, and habeas corpus, back to the Magna Carta, establishing a link between the ancient guarantee of Art. 39 with 21 Century guarantees through historical progression.

In a similar vein, In the United Kingdom, Lord Bingham’s opinion referred to the Magna Carta in the famous judgment A. and others v. The Secretary of Home Department, handed down on 16 December 2004. This judgment concerned indefinite detention of foreign nationals suspected of terrorism under the Anti-terrorism, Crime and Security Act of 2001.

Lord Bingham held:

“In urging the fundamental importance of the right to personal freedom (…), the appellants were able to draw on the long libertarian tradition of English law, dating back to chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day. In its treatment of article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom.”

In referring to Magna Carta and linking it to the subsequent developments in the 17th Century and contemporary law, Lord Bingham emphasises continuity. The long liberal tradition and the constitutional values traced back to Magna Carta embody stability at times of crisis; they offer reassurance at times of turmoil. They provide the normative, lasting framework which cannot be set aside by current majorities.

The legacy of Magna Carta is not confined to the United Kingdom. Lord Bingham implies this by referring to Art. 5 of the European Convention, which – like the Magna Carta – recognizes the prime importance of personal freedom. Through the of liberty and security, and the right to a fair trial, enshrined in the European Convention, the spirit of Magna Carta has been spread in the 47 Member States of the Council of Europe.

In my home country, Switzerland, we celebrated last year the 40th Anniversary of Switzerland’s membership of the Convention. Looking back four decades, legal scholars concluded that Art. 5 and 6 of the Convention are the provisions which have left the most profound imprint on the Swiss legal and constitutional order. It was thanks to the ECHR, for instance, that Switzerland revised its legal framework to put an end to the practise of so-called administrative detention: Between the 1930s and the 1980s, thousands of people were detained on vague grounds and without access to a court.

Administrative authorities locked up people for years without a trial, on the grounds including being “work-shy” or “immoral”. The Swiss Government apologised to the victims of administrative detention in 2010 and acknowledged the injustice suffered. The process of rehabilitation and dealing with this dark chapter of our history is still ongoing.

Unfortunately, these debates do not occur in a context celebrating the spirit of Magna Carta as part of our common constitutional heritage. They occur in a context where it has become commonplace to invoke another foundational document, the Swiss Federal Charter of 1291, which is considered the first building block of what was to become the Swiss Federal State. Designed to free Switzerland from Habsburg rule, the Swiss Federal Charter of 1291 expresses opposition to “foreign judges”, e.g. judges imposed by the Habsburg rulers. Fears of foreign rule are mobilised today to reject the European Convention – inaptly labelled as foreign law – and the judges of the European Court of Human Rights – decried as “foreign judges”.

This example shows that symbols and myths matter. Human rights and constitutionalism need powerful symbols like the Magna as an expression of a long lasting and transnational tradition.The importance of anchoring human rights in history and tracing them back to a foundational document has also been recognised outside Europe. On the African continent, a document dating back to the same period as the Magna Carta receives increasing attention. The so-called Manden-Charter was declared by the founder of the Mandingo Empire and the assembly of his wise men in a region located today in Mali. The content of the Charter has been orally handed down from generation to generation. It has been annually celebrated at commemorative ceremonies to keep its content alive. In 2009, it was inscribed by UNESCO on the Representative List of the Intangible Cultural Heritage of Humanity. In the same year, the Magna Carta was inscribed on UNESCO’s Memory of the World Register.

Like the Magna Carta, the Manden Charter can be read as expressing fundamental values underlying human rights and constitutionalism. In simple language, the Manden Charter underscores freedom and equality, with a universalist aspiration. Based on a contemporary reading, we can find the seeds of essential human rights, including the right to life, the prohibition of slavery, the right to food, the right to bodily integrity and freedom of expression. The Manden Charter reads:

1.The hunters declare:
Every human life is a life.
It is true that a life comes into existence before another life
But no life is more ‘ancient’, more respectable than any other
In the same way no one life is superior to any other

2. The hunters declare:
As each life is a life,
Any wrong done unto a life requires reparation.
Consequently,
No one should gratuitously attack his neighbour
No one should wrong his neighbour
No one should torment his fellow man

(…)

5. The hunters declare:
Hunger is not a good thing
There is nothing worse than this on this earth
As long as we hold the quiver and the bow
Hunger will no longer kill anyone in the Manden
If by chance hunger were to arrive,
War will no longer destroy any village for the acquiring of slaves
That is to say that no one will from now on place the bit in the mouth of his fellow man
In order to sell him.
Furthermore no one will be beaten
And all the more so put to death because he is the son of a slave

6. The hunters declare
The essence of slavery is today extinguished
‘from one wall to the other’ from one border to the other of the Manden
Raids are banned from this day onwards in the Manden
The torments born of these horrors have ended from this day onwards in the Manden
What an ordeal this torment is!
Especially when the oppressed has no recourse
The slave does not benefit from any consideration
Anywhere in the world.

7. People from the old days tell us:
‘Man as an individual
Made of flesh and bone
Of marrow and nerves
Of skin covered in hair
Eats food and drink
But his ‘soul’, his spirit lives on three things:
He must see what he wishes to see
He must say what he wishes to say
And do what he wishes to do
If one of these things were to miss from the human soul
It would suffer and would surely become sick
In consequence the hunters declare:
Each person from now on is free to dispose of his own person
Each person is free to act in the way he wishes
Each person disposes of the fruit of his labour from now on
This is the oath of the Manden
For the ears of the whole world.

It is up to us to ensure that the Manden Charter and the Magna Carta will continue to resonate on their respective continents and beyond – for the ears of the whole world.

John Major: Inaugural Edward Heath Lecture

It is a great pleasure to be here this evening in this magnificent Guildhall, to deliver the first Edward Heath Lecture.

Nearby, in the Cathedral Close in Salisbury, is Arundells; the first home that Ted Heath could truly call his own. Ted spent his last two decades living there and it was evident to everyone who knew him how profoundly he loved the house, with its subtle architectural balance, tranquil gardens and stunning view of our greatest Gothic cathedral. It appealed to the inner artist in Ted – and it never lost that appeal.

Next year, Ted would have been a hundred years old. I think he would have been delighted that funds are to be raised – not just for the historic delights of Arundells – but for discussion of international affairs, education and the arts. Ted knew that a rounded life extended far beyond domestic politics, and his own life reflected that understanding: it is a privilege to deliver this inaugural Lecture and Ted would, I think, have approved of the subject.

But – first – if one delivers a Memorial Lecture to Edward Heath, one cannot ignore his great achievement of taking Britain into Europe. This is not the occasion for detailed arguments about the merits and de merits of the present-day European Union: that must await a later occasion when I, for one, will argue that we are far better off working with our partners than in splendid isolation.

But Ted was born during a war that began in Europe, and served through a later one, both of which engulfed the world. It was imprinted on his mind – and that of his contemporaries – that working with our European neighbours would prevent conflict with them: in this, Ted was surely right. It was a view he held to – sometimes in the face of vituperative criticism – for the rest of his life.

And he saw, too, that only a Europe that worked together could ever look the giants of America and China in the eye – as equals. In this, too, he was right.

Our history might cry out that we can survive alone – and I have no doubt we can: but logic suggests we are more likely to thrive in partnership. This, too, Ted understood.
* * * * *

My interest in Magna Carta – the Great Charter – goes back a long way.

As a boy, of course, I was taught about it in that long-ago time when learning about our history was thought to be essential to an education.

Many years later, I came across Magna Carta in a much more personal way. I was in my early thirties, and a young Banker with Standard Chartered. It was 1975 and – because the Bank had interests in California – they wished to contribute in some way to the American bicentenary celebrations the following year.

The then Chairman, Tony Barber – Chancellor of the Exchequer in Ted Heath’s Government – invited me into his inner sanctum one evening, poured a generous drink, and began tossing around ideas of what we might do. Out of that discussion came the notion of borrowing a copy of Magna Carta to display in our branches across California. Whether that was my idea, or the Chairman’s, is lost in the mists of time – or in the afterglow of his generous hospitality – but I was duly tasked with exploring possibilities.

I soon learned there were four remaining copies of Magna Carta: two at the British Library, and one at both Salisbury and Lincoln Cathedrals. The Chairman decided to approach the Dean of Lincoln, the Very Reverend Oliver Twistleton-Wykeham-Fiennes and, upon doing so, we learned that God and Mammon had a far closer relationship than we had imagined: when he heard of the Bank’s interest, the Dean welcomed the money changers into the Temple – or, at any rate, the Cathedral.

Although the Dean was fiercely protective of the Charter, after much to-ing and fro-ing he finally agreed that Lincoln’s Magna Carta could be flown to California – but with conditions. The precious document was to be housed in a fire-proof, water-proof, bomb-proof, bullet-proof, humidity-controlled exhibition box costing £12,000 – over £100,000 in today’s money – and transported in a Vulcan aircraft from RAF Waddington. A second Vulcan was to follow close behind so that – if the first one crashed – we would know where the Magna Carta lay. Thus – even if it rested beneath the waves for decades – the Charter would still be intact when it was rediscovered.

There were some memorable vignettes.

I was told – and I do wish I had seen it – that the box was attacked with flame throwers, flood water and rifle fire to test its protective qualities. As for insurance – no-one was sure of its value – for how can you put a price on such a document?

The Dean knew how. He looked around the Cathedral, at its historic majesty, and speculated aloud about how much it cost to protect and repair its ancient fabric.

We insured Magna Carta for that sum – in the millions – which led Tony Barber to ponder whether the Dean and Chapter might actually be praying secretly for us to lose it.

Inevitably, there were hiccups. The Dean was set to fly to California, and the Bank’s travel section duly booked first-class tickets for Messrs Twistleton, Wykeham, and Fiennes. Fortunately, this was noticed ….

Although I was originally due to accompany the Magna Carta to California, the Chairman decided he needed me to travel with him instead – to an IMF Conference in Manila. So I parted company with the project. It was, however, a huge success, and the Great Charter was returned safely to Lincoln – together with Twistleton, Wykeham and Fiennes ….

*****

Magna Carta, although undeniably English at birth, has become an essential component in the laws of English-speaking nations around the world. In the UK, it underpins our system of law, and was an inspiration to the Chartists and the Suffragettes as they sought the right to vote. In America, its influence is evident in the Constitution, the Declaration of Independence and the Bill of Rights. So it is instructive to examine its origins.

In 1215, the Plantagenet King John was on the throne. His father, Henry II – arguably our greatest King – inherited a Kingdom exhausted by war and anarchy, and initiated a judicial system that evolved into our common law. John’s elder brother, Richard the Lionheart, was a leader of the crusades, and is immortalised outside the House of Lords on horseback, with sword raised aloft. Richard is the quintessential English hero, which is odd, since he was French and spoke little or no English. He spent less than one year of his reign in the country he ruled for ten – but a ransom to save him from prison did nearly bankrupt it.

I digress for a moment to note that St George – he who slayed the dragons and freed maidens – was a Syrian. He, too, spoke no English – and never visited our country. Nor did he slay dragons or free maidens. Of such virtues are English heroes made!

Let me revert to Magna Carta.

On his brother Richard’s death, John became King. Contemporary chronicles pre-date history’s verdict that he was a very bad King indeed. One wrote that “hell itself is defiled by the foulness of John.” Others were less kind. Many expressed sentiments that made today’s tabloid press seem positively tame.

By 1215, John had been on the throne for 16 years. Vicious, lecherous, arbitrary in dispensing justice, untruthful and greedy, he had done little to endear himself to his subjects.

In particular, John’s relationship with his unruly Barons had deteriorated to the point of civil war. This was no accident. He had over-taxed them to fund a war with France that he lost ignominiously. He had a propensity for – I put this delicately – the wives and daughters of the Barons. Angry and rebellious, the Barons demanded the restoration of “ancient liberties” – as enshrined in a Charter of Henry I, one hundred years earlier. But John had no intention of appeasing the Barons, and when he met them in early 1215, he rejected their appeals, and demanded even greater allegiance.

It was a foolhardy gesture and the Barons reacted with force. In May 1215, they captured London and compelled John to meet them again – this time at Runnymede, midway between the King’s army at Windsor and the Barons’ men at Staines. After several meetings – and what today we would call “a free and frank exchange of views”– an embryo Charter was drawn up: “The Articles of the Barons”.

On 15 June a binding agreement was reached: the King would issue what became known as Magna Carta and, in return, the Barons would swear fealty to him. Magna Carta was not signed – there is no evidence John could write – but the 4,000 word document, written on sheepskin parchment in Medieval Latin, was duly stamped with the King’s Seal. Copies were made by monks in the Royal Chancellery, and despatched for public proclamation to towns and cities across England. Magna Carta was born.

What did the Great Charter say? The first thing to understand is that it was a contemporary document drafted for the wellbeing of the Barons. It was time, common practice, subsequent events and re-interpretation of the text by great lawyers that elevated the Charter to its unique status.

The original Charter had 63 clauses, or chapters – many of them trivial. But the two great Chapters were Numbers 39 and 40. They are central to the enduring fame and eternal relevance of Magna Carta today.

Chapter 39:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

In other words – the Barons told the King – don’t think you can act arbitrarily against us.

And

Chapter 40:

“To no-one will we sell, to no-one deny or delay right or justice.”

This is a fundamental principle of our law. No-one can be sure who drafted it, but it seems likely that the guiding hand may have been Stephen Langton, the Archbishop of Canterbury. If so, this would have infuriated the King since – in modern parlance, the Archbishop and the King had “previous”.

A decade earlier, when Archbishop Hubert Walter had died, King John had nominated his own candidate, only to find him opposed by a faction in the Church. The Pope, Innocent III, intervened and Langton was consecrated Archbishop without John’s approval. It did not make for a good relationship.

John accepted the Charter under duress and, no doubt, with ill grace. But within weeks, he saw his opportunity to destroy it.

Chapter 61 proposed a Committee of twenty five Barons to enforce Magna Carta, and hold the King to his word. This was anathema to an hereditary Monarch who believed he was above the law. More important, it was anathema to an autocratic Pope who saw here a principle that could threaten his own authority.

When John appealed to him, Pope Innocent quashed Magna Carta in a Papal Bull. It was, he announced, “unjust, shameful – and illegal”. In the Catholic England of 1215, the Pope’s writ was all powerful . But while John rejoiced, the Barons prepared for civil war.

This time, they were serious. They no longer sought concessions. Their plan was to depose John and offer the Crown to Prince Louis of France who – while John was fighting the Barons in the North – had invaded with 7,000 troops . A bloody conflict seemed inevitable when John, at last, did something that would save Magna Carta for posterity: he died at Newark Castle.

John was succeeded by his infant son, nine-year-old Henry, and William Marshall, Earl of Pembroke, became Regent. William Marshall was a genuine hero of the age – and pre-eminent in reputation among the Barons. He re-issued Magna Carta in Henry’s name – but without the contentious Chapter 61 that had so upset the Pope.

Most Barons accepted this – and those that did not were swiftly defeated at the Battle of Lincoln Fair. Louis fled to France, and Magna Carta became more deeply embedded in both the law and folklore of the English.

In 1225, when Henry III was old enough to assume power without a Regent, Magna Carta was re-issued again – in the form we recognise today and in an abbreviated 37 Chapters – but with one key difference.

This definitive text had Henry III’s “full and free consent”. Its acceptance placed the King himself under the law.

It was a good principle, but could only become reality if there were a body in place to enforce it and, three decades later, an embryo Parliament lifted the veil on what that body would ultimately be. However, true Parliamentary control of the Monarchy was still far off.

“Words mean”, said Humpty Dumpty to Alice, “just what I choose them to mean”. That is relevant to Magna Carta because it was the interpretation of the Charter that made it so powerful. The “free men” in King John’s Charter were freeholders of land, not the free and independent men and women of later ages.

As the late Law Lord, Tom Bingham put it: “the significance of Magna Carta lay, not only in what it actually said, but in what later generations claimed and believed it had said.”

Throughout the 14th and 16th Centuries, Magna Carta slumbered. Henry VIII ignored it completely when he made himself Head of the English Church.

But it was re-awoken in the early 17th Century, when Stuart Kings clashed with Parliament. When James VI of Scotland succeeded Queen Elizabeth I as James I of England, he held the view that “Monarchy is the supremest thing on earth … Kings exercise a manner of divine power on Earth”.

This was neither the first – nor the last – time that a Scottish leader expressed views that were alien to the English, and the great lawyer, Sir Edward Coke, was soon in conflict with James – who dismissed him as a Law Officer. Undeterred, Coke entered Parliament and, in 1628, infuriated James’s successor, Charles I, by invoking Magna Carta to bridle the power of the King. “Magna Carta owns no Sovereign” Coke argued, in provocatively chosen language, as he urged the supremacy of Common Law over the Royal Prerogative.

The stage was set for political confrontation. For some years, Charles attempted to rule without Parliament, but ran out of money. When he recalled Parliament – to raise funds to fight the Scots – Parliament refused to comply until the King reaffirmed Magna Carta and the Petition of Right. The stand-off deteriorated into a Civil War, begun by Charles but won by the Parliamentary Forces under Cromwell. It was followed by the trial and execution of the King.

Nearly forty years later, another Stuart King, James II, was deposed in the bloodless coup of the Glorious Revolution, and William and Mary of Orange were offered the throne – but with conditions. They were required to affirm a Bill of Rights that granted far greater power to Parliament.

This was the effective beginning of a constitutional Monarchy, and the end of absolute rule. From that moment, Parliament was supreme. And the justification cited was Magna Carta. It would be nice to believe that Stephen Langton foresaw this triumph 470 years earlier – but, sadly, I doubt it.

*****

Although Magna Carta was undeniably English by birth, its principles travelled the length and breadth of the English-speaking world – to India, Canada, New Zealand, Australia – and, of course, that great democracy – the United States.

When the first Colony was established in Virginia in 1606, James I granted the new settlers the same rights as were available in England, and the colonists embraced these liberties in their own domestic laws. In 1638, Maryland passed a Bill to recognise Magna Carta as part of the law of the Province.

Three years later, Massachusetts framed their “Bill of Liberties” in “resemblance to Magna Carta”. In 1668, the Carolinas legislated to regulate the grants of land in a Bill they characterised as “a species of Magna Carta”.

Thus, over a hundred years before the Declaration of Independence (1776), the colonial Legislatures had firmly embedded the principles of Magna Carta into American law.

These principles were enhanced after Independence. The Federal Constitution of 1789 embodied declarations on the rights of men that were variants of English law. As Lord Bryce observed a hundred years later: “there is little in the Constitution that is absolutely new. There is much that is as old as Magna Carta.” That holds true today.

As you enter the bronze doors of the US Supreme Court, you will see a depiction of King John signing Magna Carta; and, in the courtroom itself, a marble frieze commemorating the great lawmakers, where John is shown hugging Magna Carta, in the company of Napoleon and Justinian.

The men who drafted the US Bill of Rights deliberately echoed the language of Magna Carta. In 2003, Sandra Day O’Connor, the first woman ever to serve as a US Supreme Court Justice, paid tribute to its lasting influence – noting that:

“In the last forty years the Court has cited Magna Carta in more than fifty written opinions. It has looked to concepts embodied in Magna Carta in important decisions that concern, for example, the prohibition of cruel and unusual punishment, the requirement that trial by jury be afforded in state criminal prosecutions, and the access of indigents to review of criminal convictions.”

* * * * *

How relevant is the Magna Carta today? It is rarely cited in legal action, although its derived law remains potent. And there are areas where its absence is striking and its writ has not run: extraordinary rendition, for example, and detention without trial in Guantanamo Bay. American courts ruled that normal circumstances could not apply in wartime – a contentious decision that many would question – myself included. Whatever crimes these prisoners may have committed, they deserve to be brought to trial and, if found guilty, punished: but to be imprisoned without trial cannot be acceptable.

Many, too, might be concerned at the modern level of surveillance which has grown dramatically to counter terrorist threats unforeseen by earlier generations. Much is justified by legitimate security concerns, but it is a trend that Parliaments should watch with care.

But I would argue that the Charter’s impact today goes far beyond the law. It can be seen in the attitudes and expectations of the English-speaking nations.

This evening, my focus is the UK and the US. As children of Magna Carta, we instinctively dislike over-mighty power – not least in our Governments. I lost an election in 1997 for many reasons, but one – repeatedly cited – is that we had been in Government for too long and the UK wasn’t a one-Party State. I agree with the sentiment – although I would have preferred for its implementation to have been deferred. Our two nations are suspicious of monopoly power. We have an affinity for the under-dog, for the plucky loser. Magna Carta is in our DNA – it is who we are.

And our expectations show a symbiotic relationship with the Charter. We require and expect our Laws to be fair. Our Courts to be impartial. We take for granted that we can mock and criticise the mightiest in the land without fear of reprisal. We believe we have ancient rights – freedom of speech, the right to own and pass on our assets, protection against the State. We assume all this as an ancient right, whilst acknowledging that such liberties are still not available in many other parts of the world.

Alexander the Great believed that Asians became slaves because they could not pronounce the word “No”. But we can and do: to Monarchs; to Presidents; to Governments; to Jacks-in-Office; to hostile armies – and so have we throughout our history.

Of course, the UK and US are not identical. Let me speak for a moment of my own country. As a nation we British are understated – until roused by threats or injustice – and we rarely speak of freedom, perhaps because we take it for granted.

Maybe we should speak of it more. Freedom – liberty – is essential to the individual if he is not to be crushed. It is enshrined in our every attitude. We know that – without the rule of law and free speech –despotism can reign. But, even in our own country which is, I believe, as free as any in the world, freedom is not universal. There is no freedom – no liberty of action – in poverty. There is little freedom in unemployment. They are both a blot on a free society and, if we do not seek to eliminate them, they become a blot on our conscience too.

And, on a lower level, we should beware lest independence and freedom is eaten away by pettifogging rules and too much control: we should look critically at regulation if we wish to ensure a free nation does not live in a Nanny State.

Are these sentiments due to Magna Carta? Or did Magna Carta come about because this is the unshakeable conviction of our people? We will never know the answer. But what I do know is that we should be proud we gave our laws and our concept of freedom to a large part of the world – and prouder still that they have adopted it.

These days I travel widely to every corner of the world. Many might be surprised at the respect and affection there is for our country based on our language, our democracy, our system of law and the perception that we are a fair and tolerant nation.

There is one current controversy which has faint echoes of the principal dispute over Magna Carta. That dispute – as I have set out – was between absolute Monarchy and Parliamentary supremacy. Today’s more minor dispute is between British Law and the rulings of the ECHR. It is a much misunderstood issue.

There is a strand of opinion in the UK that disowns logic and abandons consensus once the words “European Union” are mentioned: it is as though a red mist has descended, robbing intelligent minds of the ancient British genius for compromise.

So let me make clear that the ECHR has absolutely nothing to do with the European Union. This Court was established by a Convention on Human Rights, agreed in 1950, the drafting of which was guided by a Conservative lawyer and politician. Yet, I think it fair to say that, over recent years, the rulings of this Court have widened to an extent that has often upset Parliament, politicians, press and public in equal measure.

The Convention was designed to protect civil and political liberties, at a time when wartime violations were fresh in the memory and Communism – with its disregard for individual freedom – was a growing threat across much of Europe. It was signed by 47 European nations and reflected the terms of the Universal Declaration of Human Rights – itself described by Eleanor Roosevelt as a “Magna Carta for all mankind”.

The Convention was drafted in broad terms to cover such issues as the right to life and liberty; to fair trial; to freedom of expression; to the end of torture – and many rights long familiar to our own way of life. It was incorporated into British Law in the Human Rights Act agreed by Parliament in 1998.

The Government wishes to replace the Human Rights Act with a “British Bill of Rights” that would replicate all the safeguards of the Convention, but leave its interpretation in the hands of British Courts. As a result, a clamour has arisen that the intention is to infringe existing human rights. If I thought that were so, I would be a strong opponent of the change. But it is not.

Human rights and liberties were protected in this country long before the Human Rights Act, and I have no doubt that will remain the position when the legislation is updated. The land that gave us Magna Carta will not turn its back on fundamental liberties. And the land that gave us a democratic Parliament is surely right to ensure that the will of Parliament is not misinterpreted.

The ECHR is a symbol; a potent symbol of the post-war settlement in Europe. In the world of politics, such symbols matter and we respect their power and significance. I expect consultation and compromise to settle this issue.

Let me give the final word to an Englishman, among the greatest we have known, born of an American mother.

Sir Winston Churchill wrote of Magna Carta:

“The underlying idea of the sovereignty of law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject, it is to this doctrine that appeal has again and again been made, and never, as yet, without success.”

Ted Heath began his career as a Whip in Churchill’s last Government. He would have agreed with Churchill’s analysis. He understood that Magna Carta framed our law, our Parliament, our history and our nature.

Throughout the world, the rule of law is central to the promise of a safe, free, and just society. Respect for and adherence to the rule of law is the premise upon which the United States was founded, and it has been a cornerstone of my Presidency. America’s commitment to this fundamental principle sustains our democracy — it guides our progress, helps to ensure all people receive fair treatment, and protects our Government of, by, and for the people.

This Law Day, we celebrate a milestone in the extraordinary history of the rule of law by marking the 800th anniversary of the Magna Carta. Centuries ago, when kings, emperors,www.replicas-shop.me and warlords reigned over much of the world, it was this extraordinary document — agreed to by the King of England in 1215 — that first spelled out the rights and liberties of man. The ideals of the Magna Carta inspired America’s forefathers to define and protect many of the rights expressed in our founding documents, which we continue to cherish today.

The Magna Carta has also provided a framework for constitutional democracies throughout the world, and my Administration is committed to supporting good governance based upon the rule of law. Around the globe, we support strong civil institutions, independent judiciaries, and open government — because the rule of force must give way to the rule of law. For more than two centuries, we have witnessed these values drive opportunity and prosperity here in the United States, and as President, I will continue to work to bolster our systems of justice and advance efforts that do the same overseas.

America is and always has been a nation of laws. Our institutions of justice are vital to securing the promise of our country, and they are bound up with the values and beliefs that have united peoples through the ages. The United States and our citizens are inextricably linked to all those around the world doing the hard work of strengthening the rule of law — joined in common purpose by our mutual interest in building freer, fairer, more just societies.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, in accordance with Public Law 87-20, as amended, do hereby proclaim May 1, 2015, as Law Day, U.S.A. I call upon all Americans to acknowledge the importance of our Nation’s legal and judicial systems with appropriate ceremonies and activities, and to display the flag of the United States in support of this national observance.

IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of April, in the year of our Lord two thousand fifteen, and of the Independence of the United States of America the two hundred and thirty-ninth.

Barack Obama

April 29, 2015

Lord Dyson, MR, Liberties, Customs, and the Free Flow of Trade

It is a real pleasure to have been asked to give the keynote address at this 4th annual British Irish Commercial Law Forum. Given its theme – Magna Carta – I am particularly delighted to have been invited to do so this year. I am, as you may know, chairman of the Magna Carta Trust; a position held by all Masters of the Rolls since the Trust was established in 1956. You can imagine that my term of office as chairman has been rather busier than that of my illustrious predecessors.

One of the aims of the Trust is to ‘perpetuate the principles of Magna Carta.’ Magna Carta is a curious hotch-potch of a document. Many of its provisions cannot by any stretch of the imagination be described as principles. They include detailed measures of an intensely practical nature which reflect the economic and social conditions of the early 13th century. Some of them concern were aimed at resolving grievances that King John’s barons had at the time; grievances that were not only directed at him but were a reaction to Angevin rule.

For example, the Charter required him to remove a number of his more troublesome supporters from office. Chapter 50 provided: “We will entirely remove from our bailiwicks the relations of Gerard de Atheyes, so that for the future they will have no bailiwick in England; we will also remove Engelard de Cygony, Andrew, Peters and Gyon, from the Chan-cery; Gyon de Cygony, Geoffrey de Martyn and his brothers; Philip Mark and his brothers and his nephew, Geoffrey, and their whole retinue”. Quite a putsch.

But it is undeniable that Magna Carta does contain a numbers of chapters which we would recognise as setting out important principles which have real relevance today. They are the reason why it has been grandiloquently been claimed that Magna Carta is the inspiration for democracy; and why thousands of people from all over the World are planning to congregate in a field at Runnymede on 15th June to commemorate the 800th anniversary of the sealing of the Charter. I have in mind in particular the famous chapter 40 “To none will we sell, to none will we deny, or delay, the right of justice”. Words of captivating brevity. And chapter 20: “A freeman shall not be amerced for a small fault but after the manner of the fault; and for a great crime according to the heinousmess of it” (an early assertion of the principle of proportionality). I also have in mind other provisions concerning access to justice and due process of law and the right to fair trial as well as the requirement that justice should be dispensed from a fixed place , that it should be local ; and that judges should know the law, which often meant local law – an early instance of subsidiarity, perhaps. And that only judges should sit in judgment . The Charter was not, however, the source of trial by jury or the great writ of habeas corpus.

Its opening provision guaranteed the rights and liberties of the English Church , although it did not specify what they were. Plenty of room for manoeuvre there, and work for lawyers. And it provided a series of significant guarantees concerning trade and commerce. While it was neither the first nor the last instrument to do so, it established uniform weights and measures. England at the time was developing economically. Successful trade depends, to a large extent, on traders understanding and being in agreement as to what they are selling and buying. It would be a recipe for chaos if a seller took a length to mean 45 inches when the purchaser understood it to mean 37 inches. A thriving mercantile economy, much of which involved trading in a variety of types of cloth, needed a uniform approach.

So Magna Carta standardised the basis of trade. It sought to secure the free flow of trade. It required the removal of all fishweirs from rivers across England . Bad for fisherman, but good for traders. Fishweirs led to rivers silting up. Consequently they became less and less navigable. They clogged up important trade arteries. Their removal was needed to increase free trade.

Free movement of goods is not however sufficient for a thriving economy. There has also to be free movement of merchants. Thus chapter 41 provided “All merchants shall have safe and secure conduct, to go out of, and to come into England, and to stay there, and to pass as well by land as by water, for buying and selling by the ancient and allowed customs without any evil tolls; except in time of war, or when they are of any nation at war with us”. What better evocation of the idea of free trade? An early embodiment of the ideals which informed what is now known as the European Union.

Encouraging the free movement of goods and tradesmen is one thing. But trade and investment do not simply depend on an ability to trade. If they are to flourish, it is imperative that property rights of traders and investors are protected by the law. The parties to the Charter well understood this. A trader or investor has little incentive to engage in trade or to invest if they are at risk of arbitrary dispossession of their property interests. Such dispossession was not uncommon. King John routinely stripped his subjects of their property in order to fund his military adventures. An object of the Charter was to put a stop to this. It provided at chapter 39 that “no freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the laws of the land”. This was an early foreshadowing of Locke’s theory of government and the 14th amendment of the US Constitution.

So the Charter made provisions to ease trade and secure property rights. It also affirmed that the City of London and all other ‘cities, boroughs, towns and ports shall have their liberties and free customs.’ Commercial centres needed to be supported. The exact nature and extent of the liberties and free customs was not defined. It is right to note, however, that more than seventy charters had been issued to individual towns and cities. Magna Carta was declaratory of their continuing effect, as well as of the right of the City of London to be both self-governing and to continue to appoint its Lord Mayor.

The importance of Magna Carta today

So much for the Charter itself. What is its relevance for commerce and the rule of law today? Here I pause to note a warning that was given in a stimulating recent analysis of Magna Carta by Lord Sumption.

In a recent lecture in which he stripped away a number of what might be called the myths in which the Charter has become enveloped, Lord Sumption concluded with this warning:

‘We are frighteningly ignorant of the past, in large measure because we no longer look to it as a source of inspiration. We are all revolutionaries now, controlling our own fate. So when we commemorate Magna Carta, perhaps the first question that we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not.’

Not for him Sir Anthony Eden’s view that the road to 1215 ‘marked the road to individual freedom, to Parliamentary democracy and to the supremacy of the law.’

It may be that nobody directly bases their belief in democracy or the rule of law on the document that was sealed at Runnymede 800 years ago. But it cannot be denied that the Charter does set out a number of principles which, however rudimentary the form in which they were expressed, are now taken for granted as being central to a modern liberal democracy. It is right that, from a historical point of view, we should locate the Charter in the social and economic conditions of the 13th century and acknowledge that it reflects the values and mores of that time. But it is an inescapable fact that the Charter principles to which I have referred have been influential in the development of modern democratic systems. This is not the place to trace the checkered history of these principles. Suffice it to say that the Charter endured for no more than ten weeks, before the Pope annulled it at John’s request. It was brought back to life by William Marshall on John’s death. Thereafter, it languished until, as Lord Sumption explains in a little detail, it was resurrected with enthusiasm by Edward Coke in the 17th century.

John Adams, the second President of the United States, said that ‘Democracy never lasts long. It soon wastes, exhausts and murders itself.’ He believed that in democracies, as in other forms of government, individuals were prey to the same flaws of, as he put it, ‘fraud, violence and cruelty.’ The strength of any democracy lies in the robustness of its institutions of governance and in public confidence in them. Weaken either and democracy is weakened.

One of the great strengths of the UK and states which enjoy similar democratic systems has been their commitment to systems of justice. It is no good having wonderful laws if the state does not provide a fair and effective system of justice to enable individuals to vindicate their rights by reference to those laws. Everyone should have equal access to justice. And I do not simply mean formal equality of access in the sense that ‘The doors of the Ritz are open to all.’ I mean, of course, practical and effective equality. This includes that the courts, legal advice and representation are available to all those who require it. This an essential aspect of democratic participation in society. It is because it is the means by which the law (these days largely the creation of elected Parliaments) is given life. It is also the means by which aggrieved citizens can hold public authorities to account by judicial review in the courts.

Free and fair elections are, rightly, understood to be the central mechanism by which democracy is nurtured and sustained. Equal and effective access to the justice system is another, and equally important, mechanism. At the present time the justice systems in many democratic societies are under strain. Budgetary constraints are having a serious effect. Governments are strapped for cash and have to make hard political choices. These tend to be driven by their assessment of what the electorate regards as important. Sadly for those to whom the maintaining of high standards of justice is of paramount importance, expenditure on justice systems is not seen as a high priority by those in power. In a number of jurisdictions there has been a marked shift away from state-funded legal aid for civil and family justice. This has been particularly controversial in England and Wales. This shift has, to a certain degree, been mirrored by a liberalisation in other funding methods, such as the introduction of various forms of contingency fee funding and the growth of third party funding.

The merits of the public and private funding civil justice are issues for another day. However, if we are to continue to maintain access to the courts, our funding methods must be effective and affordable. If they are not, and individuals and small and medium-sized enterprises are unable to gain access to our courts, we will surrender our commitment to equality before the law and we will diminish our democracies, and their ability to develop their economies. A small or medium-sized business that is unable to enforce its debts, or to keep its trading partners to their bargains through litigation or the threat of litigation is one that will not long thrive or even survive. Diminution of funding is a modern analogue to the barriers to trade that Magna Carta sought to blow away.

Necessarily linked to litigation funding is the cost of litigation. By this I mean to refer to both court fees and lawyers’ costs. If either is too high, they inhibit access to the justice system. The individual litigant who wishes to have recourse to the courts in order to vindicate his private law rights or to hold a public authority to account by judicial review proceedings may not be able to do so. This is potentially very serious. Judicial review is a valuable means of holding public authorities to account. To curtail the ability of a citizen to seek judicial review of a decision is no doubt good for the decision-maker. For public authorities, judicial review is it best an irritant and at worst a road block to the journey it wishes to make. But the denial of judicial review is bad for the rule of law. If citizens cannot afford to have their disputes resolved by the courts, that too is bad for the rule of law. The spectre of self-help and disorder is not fanciful.

From a commercial perspective, if litigation costs are high and a dispute cannot be settled consensually, businesses must divert resources from commercially beneficial activity, such as investing in new products and developing new markets, to litigation. This is may be welcome to the legal profession; but it is of little benefit to the overall economy. Excessive litigation costs silt up the arteries of trade and access to justice as effectively as the fishweirs that were removed by Magna Carta were a barrier to river traffic in the 13th century.

The guarantee of due process vouchsafed by Magna Carta was predicated on the barons’ complaint about John’s resort to arbitrary justice. They wanted justice before the court of barons – their peers – which had been enjoyed before John decided to use the law as a means of increasing his finances. The barons have been portrayed as heroes. But that has not always the case. As Jeremy Bentham noted in his discussion about the laws which prohibited champerty and maintenance, ‘a man [could] buy a weak claim, in hopes that power might convert it into a strong one, and that the sword of a baron, stalking into court with a rabble of retainers at his heels, might strike terror into the eyes of a judge upon the bench.’

The days of barons or anybody else stalking into court, sword in hand, are long gone. But Bentham’s colourful image illustrates brilliantly what we now call “inequality of arms”. These days, inequality is usually demonstrated by a lack of availability of equal resources to opposing parties. It is often manifested by an imbalance between defendants and prosecuting authorities in the criminal law context; and between claimants and public authorities in the public law context. In the case of private law disputes, there can be a serious imbalance between the resources available to an individual of modest means and those available to a wealthy individual or a large corporation. The rule of law requires that a justice system is open to all; and that all who come before the courts are treated equally. Justice should not be at the beck and call of the highest bidder, contrary to King John’s view.

I recognise that the provision of an effective justice system is expensive. In England and Wales, as in many liberal democratic systems, the courts are under huge pressure to cut costs and improve efficiency. I accept that, in our system at least, there is scope for improvement without sacrificing access to justice. Lawyers are said to be conservative and resistant to change. There may be some force in that assessment. But in my country at least, the judges are co-operating in the reforms that are in train. There have been major changes in the processes of criminal, civil and family justice. These are reforms which would have been unthinkable when I entered the legal profession in the late 1960s. And there is much more to come. Perhaps the most fundamental change that now needs to be made is to modernise our IT systems. We have not yet realised the benefits that the IT revolution can bring to our system of justice, a revolution, which if carried through effectively, will increase the speed and efficiency of litigation and reduce costs. I hope, for example, that before long all documents will be filed and managed electronically; and that the majority of procedural applications will be dealt with electronically. The days when court buildings are bursting with paper files on the floor or stored on long shelves or in large cupboards are, I hope, numbered.

We are also exploring the possibility of a scheme for on-line dispute resolution. This is an exciting project which I am confident will get off the ground before long. We shall have to work out the details of how it will operate and, in particular, to what kinds of case it will apply. I can also see no practical reason why, assuming the court has jurisdiction, it should not be possible for hearings to take place across continents via the Internet, bringing litigants from one continent into the same court as litigants from another continent. Changes are taking place at great speed. The main impetus is the need to improve efficiency and reduce cost. In principle, that is a good thing. We need, however, to be vigilant to ensure that this rush to change, increased efficiency and saving of cost does not undermine access to justice. There is no reason in principle why it should have that effect. But we need to take care to protect an ideal that owes not a little to Magna Carta and which is fundamental to the rule of law. It hardly needs to be said that the rule of law is one of the hallmarks of our cherished democratic societies.

It took hundreds of years to move from Runnymede to liberal democracy and to secure firmly the commitment to the rule of law. If we are to maintain that commitment, we need to recognise that it cannot be taken for granted. We must be vigilant to ensure that we maintain an effective, accessible system of justice. It is essential to the promotion of confident economic activity that parties are able to make bargains in the knowledge that their disputes will be resolved in a court of law by independent judges in accordance with the law of the land and that the judgments that they obtain from the courts will be enforced by the state. Without such a system, there is chaos and trade becomes difficult, if not impossible. Our system is not perfect. Indeed, the recent cuts in resources which have been introduced in England and Wales (and other jurisdictions too) as a result of the economic downturn have put our system under enormous strain. The political reality, however, is that there are fewer votes in Justice than, for example, in Health and Housing. But we still enjoy a system which is the envy of most countries in the world. It is precious and we should value it. We should certainly do all we can to protect it.

Thank you.

February 23, 2015

Ditchley Foundation: The future of democracy in the world: Magna Carta 800th anniversary

The following is the Director’s Note submitted after a conference at the Ditchley Foundation held on 29 – 31 January 2015, ‘The Future of Democracy in the World: Magna Carta’s 800th Anniversary.’ The conference assessed the role and the future of democracy today in light of the 800th anniversary of the sealing of Magna Carta, the Great Charter of Liberties, in 1215.

The first conference of 2015 saw us commemorating the 800th anniversary of the sealing of Magna Carta with a debate dedicated to the state of democracy today, and the challenges it faces for the future. We were very grateful for the support of the Magna Carta Trust 800th Committee. The warmth and vigour of the discussion belied the cold outside and, although we were rather better at identifying the problems than the solutions, there were some clear pointers to where progress most needed to be made. Wise chairmanship helped encourage us in the right direction. Although the history of Magna Carta was not our subject of debate, we kept coming back to its significance as a fundamental building block of even the most modern conceptions of democracy.

Summary

We were agreed that democracy, with its extraordinary success around the world in the last 60-70 years, remained the least worst form of government yet devised, and that no attractive alternatives to it had yet appeared. More authoritarian systems could appear better able to deliver results, particularly in the economic field, in the short term. But we were not convinced that such systems could endure and deliver over time, through bad times as well as good, still less satisfy their citizens’ aspirations for a say in how they were governed and the securing of their basic rights as citizens. We did not accept that some countries or peoples were not ready for, or unsuited to, democracy, or that religion was incompatible with democracy, despite current questioning of this in relation to Islam. However we did recognise that democracy was not necessarily destined to be the dominant form of government everywhere, that its success was increasingly questioned, and that some authoritarian regimes were pushing back.

We did not attempt a comprehensive definition of democracy, but identified some essential features, including the ability to vote to change governments regularly, the existence of fundamental freedoms of expression and association, and the rule of law. Democracy was best viewed as a continuum rather than a binary issue. Each democracy was both context-specific and dynamic. Each also contained the seeds of its own destruction through the potential election of a democracy-destroying party or individual. We struggled to agree on whether there were identical fundamental values in every democracy, and if so which, but did agree that democracy was the best way of securing and preserving basic human rights, despite variations in practice around the world.

We worried about problems facing established democracies, including apparent voter apathy, particularly among the young. The growing distance between politicians and voters was worrying. There was a disconnect between the digital world, where the younger generation felt at home, and traditional politics. Political parties were losing membership and credibility. Some participants questioned whether representative democracy could survive in its current form. New ways of engaging with the voters and increasing participation were urgently needed, particularly online.

Newer democracies and countries trying to transition to democracy were often more enthusiastic about the precious gift of the vote, and more innovative, but could also face more serious problems: elected dictatorships, corruption and trampling of basic rights. The lack of a strong civil society was often a fundamental handicap, particularly where previous dictators had deliberately destroyed institutions and traditional sources of influence.

In all cases the survival of democracy could not be taken for granted, and needed to be protected through active promotion of its virtues, within countries and internationally. It was important that there were international standards against which countries could be measured, and that international organisations should uphold these. We struggled more with the concept of international intervention to protect or restore democracy. Peaceful means of pressure were not controversial, but views were divided about whether military intervention could ever be justified. We also looked at the tricky relationship between democracy and the nation state and nationalism. Which regions could or should have the right to secede?

We had no neat solutions for these problems, but a number of recommendations and pointers for the future emerged clearly from our discussions, and are listed. Our overall conclusion was that democracy faces some serious challenges but is vital to all our futures, and is worth the struggle. Losing it accidentally would be unforgiveable, as foundational documents like Magna Carta constantly remind us.

Main Note

Is democracy still the least worst form of government?

The answer to this question was a resounding yes. Whatever the problems faced by democracy in many parts of the world, it was still what most people from all backgrounds and cultures wanted, if they were given a choice. The spread of democracy since the end of the Second World War had been astonishing. Even the worst dictators now felt the need to give themselves some democratic trappings. People were not wedded to particular models of democracy (and the distinction between Western and other forms of democracy was ultimately a false one), but they valued and craved freedom, and the ability to have a say in who ruled them and how, underpinned by respect for fundamental human rights and values, and institutions like an independent judiciary. More authoritarian systems might be able to deliver faster economic growth and decision-making in certain circumstances, as China in particular had shown. But they were not capable of engaging and satisfying people in the longer term, through bad times as well as good. Truly benevolent dictators were few and far between, if they existed at all — and you could not choose or fine-tune your dictator. There was also a link between open democratic societies and the opportunity and desire to exercise entrepreneurial skills, and therefore economic success, which we should not ignore.

Acceptable alternatives to democracy as we currently knew it had not so far emerged in any recognisable form. Attempts to claim that there were alternative value systems to those which underpinned democracy, such as “Asian values” or “Islamic values”, had so far proved little more than efforts to justify more authoritarian rule in one form or another.

Similarly, while resistance in other parts of the world to a system which could be seen as “western”, or even “colonial”, in origin, was understandable, claiming that such a system was not appropriate for a particular country or region had not proved credible. The ideas of consultative forms of government and individual rights were in any case not exclusively western, as the Ashokan pillars in India reminded us. Most participants rejected the view that some countries or peoples could somehow be seen as “not ready” for or “not suited” to democracy. While education and prosperity undoubtedly helped to allow desire for democracy to grow, the poor and uneducated were also quite capable of understanding what freedom meant and fighting for it, as we had seen in countries like India and Bangladesh and in parts of Africa. We did not accept that some groups, such as Russians, would necessarily always want or need a “strong man” to lead them. This was just a convenient myth.

On the negative side, we had to recognise that the automatic assumption prevalent in the western world for the past 60 or 70 years, that democracy would ultimately spread everywhere, was now under serious challenge from some authoritarian regimes around the world, even in Europe itself. Democracy was not destiny, and had to be defended and fought for. Within democracies too, even established ones, there were some major challenges. Old verities had gone, and the new ones were not yet in place.

We had some debate about whether democracy and Islam were easily compatible, given the view of many Muslims that religion and state could not be separated, and that their religion and its tenets should trump human rights in some areas, for example the place of women in society, or tolerance of some areas of freedom of expression. The majority did not accept that there was any fundamental incompatibility, pointing to cases like Indonesia and Malaysia, and up to a point Turkey, to demonstrate this. But there was a debate to be had. This issue is explored further elsewhere in this Note.

Can the people be trusted?

This was an interesting discussion. The obvious answer was yes — there was no realistic alternative to trusting the people. However many participants made the point that democracy contained the seeds of its own destruction, in that people in a particular country might well vote at some point for an individual or party who would subsequently abolish democracy. Germany in the 1930s was a dramatic example from the past, and there were plenty of current examples of leaders who were apparently popular and who won elections which looked legitimate, at least on the surface, but whose commitment to democracy was suspect, to put it no higher. Questions had for example been asked about the commitment to democracy of the Muslim Brotherhood in Egypt — would the Morsi government inevitably have been one man, one vote, once? The subsequent military coup meant that we did not know the final answer in the Egyptian case, though the Brotherhood in Tunisia had behaved democratically so far.

A more subtle threat came from majoritarianism — the ability of the majority to oppress the minority or minorities. It was hard to avoid this risk entirely — some minorities, however defined, would always resent the ability of the majority to impose their view. But this pointed to the necessity of accompanying fair electoral systems with other devices designed to ensure fairness and protection of basic rights — written constitutions, independent judiciaries, Bills of Rights etc. — and with agreed values. Strong civil society was another essential way of ensuring checks and balances in any particular system. Devolution and decentralisation of power could also be extremely valuable in guarding against “winner takes all” attitudes and outcomes.

What is democracy?

Questions like these inevitably brought us back to the basic issues of how to define democracy. We tried to avoid disappearing too far down this particular rabbit-hole, which could have derailed the whole conference. We were agreed that there was not, and could not be, a universally accepted and completely satisfactory definition of democracy. Even among the established mature democracies, there were great variations of policy and practice, and even of principle in some areas. Each democracy was society-specific, and also constantly changing its own dynamics. Moreover whether a particular country was democratic or not was not a binary question. Instead there was a continuum, and the question was how far along it in any particular direction individual countries should be placed.

At the same time, there were certain essential features of any system which aspired to be democratic, including:

– The ability of the people to change their governments peacefully, at regular and reasonably frequent intervals.
– Freedom of expression.
– Freedom of association.
– Freedom of individuals to be candidates for elected office.
– Equality before the law, and rule of law (assuming the law itself was democratically devised and protected).

We struggled with the extent to which democracies had to have shared value systems within themselves, or between themselves and other democracies. For example which human rights should be regarded as fundamental to any democracy? The UK of the 1930s, once universal suffrage had been achieved, was basically democratic, but laws were in force then, such as the illegality of homosexuality, which, while supported by public opinion at the time, would be regarded as undemocratic by most Britons today. Many countries around the world, with many of the attributes of democracy, still repressed and oppressed gay people and indeed women. This suggested that it was difficult to lay down hard and fast rules about particular values, whose absence, or the absence of means to enforce them, would make a country basically undemocratic. The continuum approach was valuable here. However this view was certainly not shared by all around the table. Some argued that societies where women and minorities were denied their rights simply could not be regarded as fully democratic. Universal values and rights were just that, universal, even if some were not (yet) universally accepted.

We also struggled with the relative importance for democratic status and promotion of democracy of processes, such as elections, and values. Our general conclusion was that this was a false choice. Values by themselves were insufficient if there were no effective institutional mechanisms to put them into daily practice. Processes were crucial but, in the absence of key essentials such as freedom of expression and association, were also clearly not enough to guarantee democracy. There were many countries round the world which held elections which were not, and could not be, genuinely free and fair, even if an individual electoral result might appear to outside observers to conform to the popular will.

The importance of voting

While we agreed that elections were certainly not enough by themselves to deliver genuine democracy, and thought that this point needed to be hammered home regularly, we also agreed that the vote under universal suffrage was not only essential but precious, and by no means guaranteed for ever, even in mature democracies. Many newer or emerging democracies had preserved this sense of preciousness, as shown both by consistently high turnout levels and the sense of civic pride and enjoyment in going into the ballot booth. Sadly some established democracies seemed to have lost it. Voting was not associated by younger generations with exercise of their fundamental rights or their civic duty, and turnout levels were declining worryingly in many mature democracies.

What solutions were available for this? Compulsory attendance at the voting stations, as in Australia or Belgium, seemed to have significant support around the table, although some pointed out the risk of perverse consequences if those who knew and cared least about the outcome of a vote nevertheless could have a big influence on the outcome. Making voting easier (more and more attractive physical places to do it, voting online etc.) was another obvious route. Paying people a small sum to vote could help in some cases. We also noted an interesting trend towards allowing the vote to 16 year olds and above, rather than the more normal starting age of 18. The arguments in favour were not only that 16 year olds were entitled to do many other things, and would be hugely affected by the results of elections, but also that if they were voting while still at school they could be more easily educated about why it was so important.

In this context we noted the risks of the old voting more than the young, as was increasingly the case in many established democracies. Politicians would naturally look to appeal to this grey vote, which could both further alienate the younger generations from the political process, and risk an unfair bias in the ways benefits and advantages were distributed.

Problems of established democracies

A significant part of the discussion was taken up by an enumeration of the ills of mature, “western” democracies. On the one hand we noted that these were mostly “first world” problems which did not yet threaten basic democratic rights and freedoms, and could hardly be compared to the more direct challenges to democracy in parts of the developing world. It could be argued that if people were not very interested in politics or elections, that meant they were basically reasonably happy with the system and its outcomes. On the other, there were fears that the trends were relentlessly negative; that if they continued, the threat to democracy as we knew it could become more actual; and that if the classic role models of democracy such as the UK, US and France began to falter, and lose confidence in themselves, this would be very bad for democratic campaigners, and indeed democracy, in the rest of the world.

Beyond the obvious problem of falling turn-out already noted, we identified the following mature democracy problems:

– Disillusion with the democratic process as unable to deliver results.
– A voter sentiment that the distance between them and their political masters was wide and widening further.
– A voter view, at least partly driven by media coverage, that politicians were only in it for themselves, were all the same and did not keep their promises.
– A feeling among some that western democracies could no longer deliver economic success, as they had done for so long, because the accompanying capitalist model was broken.
– A disconnect between the current democratic process and the digital communication age.
– Loss of membership and credibility by political parties.
– Unhealthy role of money in elections (above all in the US).
– Deepening economic and social inequality, which appeared hard to square with democracy.
– The rise of a professional political class with little or no other experience of life, creating even greater distance of politicians from voters.
– Debased use of language by politicians: clichés and “borrowed words” which failed to connect with, or inspire, voters.
– The rise of populist parties and politicians.
– The sentiment among some voters that politicians were not the ones who held real power, and that those who did were not accountable.
– Voting systems where parties came into government with only a relatively small proportion of the popular vote, or the results of only a few constituencies really mattered to the final outcome.

Fundamental linked factors behind many of these problems were the tendency of many politicians to over-promise and under-deliver, and the consequent tendency of many modern voters, despite their underlying disillusion, to have exaggerated expectations of what politicians could do. The reality in a complex and globalised world was that national politicians had limited power to influence developments, even within their own countries, but were reluctant to admit this, or to discuss the big issues seriously and honestly. Instead politicians tried to market themselves and their proposals like soap powder, while telling voters falsely that their views really mattered. This just increased voter disillusion. Greater humility by politicians would help a lot.

The other fundamental issue was how to mesh democratic practices with the digital world. Currently, the social media could be very powerful influences in some political areas, but mostly on a self-selecting and self-reinforcing basis, and more often negative about individuals or policies than constructive. Politicians used the social media themselves as communication devices, but politics had not yet changed significantly. There was no consensus on whether the internet had changed everything or just speeded things up, but the former view predominated.

How serious were these problems? Most mature democracies could probably continue to muddle through for some time yet. But the lack of interest in traditional democratic processes by the young (who were just as engaged as ever by issues, but not by current politicians) could prove fatal over time. Revolutions and “democratic accidents”, where populist, or even openly undemocratic, parties using more appealing language and promising simple solutions were elected, certainly could not be ruled out. The current trends in some European countries were genuinely alarming, not least the rise of the Front National in France. However there were also counter-examples available — the Scottish referendum had engaged the Scottish population fully because they had seen the result as key to their futures, and the Scottish National Party had recently gained members dramatically.

What were the cures for these ills? We were agreed that there were no magic bullets. But one key had to be to find new ways of engaging voters through allowing them greater participation, and using the power of the digital world. It was easier to say this than to identify effective ways of doing it. We were on the whole suspicious of devices like on-line referenda on wide ranges of issues. But greater use of online consultative groups chosen at random (to avoid the problem of self-selecting lobbies) needed to be explored. Active online monitoring of political decisions was another way forward, and an already increasing phenomenon, as was “watchdogging”, where claims were constantly checked against facts. An interesting proposal made by a number of participants was to use a lottery to select citizens to be given political responsibilities at local level, as a way of both increasing participation and demonstrating how difficult political decision-making was in reality.

The question of money in politics came up quite a lot, mostly in the US context, where the sums involved massively outweighed those in other mature democracies, and seemed to be a major distorting factor. We saw little prospect of substantive change in the US, while hoping that there would be. Elsewhere, there was a lively debate about how best to finance political parties, and many different models, but no obvious right answer.

Several participants questioned whether the model of representative democracy was still relevant and effective, when its key mediating elements, political parties, were so weak and discredited. Perhaps the time had come to move toward more direct, participative models. Others were worried that such models could prove unmanageable and ultimately undemocratic, and could certainly prove dangerous to hard-won rights in areas where unmediated public opinion could be crude and hostile (e.g. the death penalty). Individuals could be harder to control than parties. The majority view seemed to be that new participatory techniques and devices should be seen as complementary to, rather than an alternative to, representative democracy and the role of political parties. But this was an area which needed further exploration. Certainly something had to change and soon.

The other issue raised frequently around the table was the quality of current democratic leadership, which often appeared mediocre at best. We agreed that heroic leaders in the Churchill mould only appeared when there was an existential crisis demanding such qualities. However, it was still not unreasonable to hope that our leaders might occasionally rise above their short-term tactical concerns, and electoral deadlines, to present visions of the future and debates on the fundamental issues which would really engage the voting public, without lapsing into simplistic and dangerous populism.

Problems of newer democracies

The issues in the newer democracies, insofar as a clear distinction of this kind could be drawn, and in countries hoping to transition to democracy, were often starker and arguably more serious. The positive side of greater voter enthusiasm was often more than matched by the habit of many politicians, once elected, to trample on the rights of citizens, and manipulate the decision-making processes and institutions for their own ends. Corruption was often a deep-seated malaise which was ultimately incompatible with real democracy. Some newer democracies also lacked a community of values or even a sufficient sense of national identity. There was also a phenomenon of “authoritarian learning”, where undemocratic regimes picked up lessons from each other on how to repress and stay in power, including how to use the new media to do so.

The internet had on the whole been a boon to those trying to promote democracy where it had not existed before. People could see how people lived in other countries, and realise that their aspirations were not just impossible dreams. They could communicate with other like-minded individuals. Popular protest and the phenomenon of ‘squares’, where people did not just go to demonstrate, but also to live and demand change over periods of weeks or months, were changing the dynamics of politics in many countries. However the social media could be a double-edged sword, as authoritarian regimes learned how to use it to stifle dissent and track down dissenters.

A fundamental problem in some countries trying to transition to democracy was the lack of a well-established and confident civil society, which was one of the most important checks and balances on the power of the executive. This could not be created or re-created quickly. It had after all taken England/Britain almost 800 years to move from Magna Carta to full democracy. This problem was most glaring in countries where dictators had systemically destroyed national institutions, traditional sources of power and influence, and civil society in general, and were then toppled. Subsequent elections could be successfully held, with enthusiastic participation by the newly-free population. But the necessary underpinnings to sustain and consolidate democracy were simply not there. The Arab Spring had dramatically exemplified this in several countries, resulting in either chaos or counter-revolution/military rule (though some argued that the Arab Spring story was far from over and that the desire for freedom and democracy would inevitably reassert itself again).

In this context we discussed again whether fundamentalist Islam and democracy could co-exist. We were reluctant to conclude that this was necessarily the case, but we did note that some were trying to use a purist form of Islam around the world to suppress certain basic rights. Their attitudes certainly did not seem to fit traditional ideas of ‘liberal’ democracy. Could there be such a thing as an ‘illiberal’ democracy? We doubted it.

We saw no easy solution to this issue of civil society absence. Time and encouragement were bound to be needed to develop what was needed. In any event it was vital to recognise the fundamental value of and need for accountable institutions, vibrant civil society organisations and democratic habits and attitudes (such as acceptance of election losses, and the idea of a loyal opposition). That was exactly why elections did not equal democracy.

On the positive side, newer democracies often had less hang-ups about change and innovation, and use of the digital tools, than mature ones, some of which seemed reluctant to tamper with their own ‘sacred’ institutions and traditions, even when these were manifestly not working. This did not prevent some of these mature democracies from continuing to lecture the newer ones — but too often it was a case of “Physician – heal thyself”, which undermined the message.

Promoting democracy

We were agreed that it was not enough to hope that democratic values and institutions would speak for themselves, or emerge without help. They needed to be actively promoted and defended. At national level, civic education, particularly in schools, was the most important way of doing this, but it was far too often neglected or done half-heartedly. The media clearly had a vital role to play but their impact was often double-edged. They were vital to exposing abuses of democracy such as corruption, and were an essential part of democratic accountability. At the same time the penchant in some countries for the media to denigrate all politicians and indeed all politics inevitably contributed to public disillusion, and even threatened to undermine democracy itself, by helping lay the foundations for dangerous populism. This was just a fact of life where we saw little chance of change – the cure would always risk being worse than the disease if freedom of expression were curtailed. But journalists did need to recognise how much power they wielded in this area, positive and negative.

An ever trickier question was whether the international community, or at least the democratic parts of it, should intervene if democracy were threatened in a particular country or overturned. The general view around the table seemed to be that in principle it should. Diplomatic and other peaceful means of pressure could and should be deployed. But there was the usual difficult discussion about exactly when more coercive outside interventions, particularly of a military kind, could be justified: who could authorise them, on the basis of what criteria, and who should carry them out? The Responsibility to Protect doctrine encouraged intervention to save populations from major abuses but did not really answer these kinds of questions. At the same time, it was noted that not intervening could itself be seen as a form of intervention. The role of the outside world in the success and failure of the Arab Spring in several countries should not be underestimated.

There was acceptance that democracy could not be successfully imposed from outside, except in special and unusual circumstances (Germany and Japan after WWII), still less particular models of democracy. The impetus and the will had to come from within if democracy were to be sustainable. Nevertheless outsiders did have a role. One participant compared this to helping prepare the ground, for democracy, and even planting the seeds, without being able to take responsibility for whether they grew successfully.

It was in any case vital that those campaigning for democracy and human rights inside countries where this was difficult felt they had international support, even where there was no prospect of any outside intervention e.g. in China. International standards to which countries could be held were important, and international organisations such as the UN and the Commonwealth could play an important role in not only spreading democratic ideals, but also holding countries to account. The recently agreed Commonwealth Charter was held up as an excellent modern document in this area.

We also looked in this context at the link between democracy and economic success. The temptation to think that this link had been broken was tempting, in the wake of the 2007/2008 financial crisis, and the economic success of countries like China. But many participants argued that this was a false, short-term view. In the long run only democracies could foster the innovation, creativity and rule of law necessary for successful and sustainable economic growth, and provide the necessary underpinning for genuine efforts to root out corruption. Democracies could make plenty of mistakes. They could for example harbour large and increasing inequalities, as was currently the case in several western democracies. But this was not the fault of democracy itself. Indeed this point could be argued the other way: the link between poverty and lack of opportunity in authoritarian societies where most people had no voice was also strong.

International aspects of democracy

We did not explore this interesting area in detail, but some useful points were registered. Democratic deficits could exist not only within states but between states and across global institutions and problems. Examples included the current unrepresentative make-up of the Security Council, obvious problems of democratic legitimacy within the EU and the Eurozone, and questions such as how people’s democratic views could be taken into account over a globally threatening issue like climate change. We had no new answers to offer in these areas.

One issue which did detain us was the relationship between democracy and the nation state. This was complex. On the one hand the sovereign nation state was making a comeback, as could be seen from the aggressive nationalism of Russia and, in a different way, China. On the other, the relevance of the nation state was being challenged by global problems and global digital groups, to neither of which national borders mattered, and by movements such as ISIL. How far should this worry us and could it ultimately destroy democracy? The nation state had been a key building block of democracy. It was difficult to see how democracy could be exercised effectively without defined boundaries within which people could share identities, values and processes. At the same time, national boundaries often seemed to matter less and less to many people, particularly those active in the digital space.

A related issue was how democracies should deal with nationalism. What criteria could and should be used to determine which regions of a country, if any, should be given the right to determine their own future, and secede from their state if they so chose? There was absolutely no consistency of policy or practice around the globe about this. One fear was that democratic countries ready to allow restless regions to secede would finish up not only weakening themselves but also discrediting democracy in the eyes of governments around the world fearful of national break-up.

Recommendations

No neat list could be agreed from such a wide-ranging discussion, but the following key points could be distilled from the discussion:

– Democracy should not lose confidence in itself – other systems’ weaknesses would always show through in the end.
– All democracies urgently need to look for innovative ways of engaging voters: participation, participation, participation.
– Young voters have to be a particular target — the “grey vote” is not enough to sustain a vibrant democracy.
– New ways of using social media and online communities to engage voters are particularly urgently needed. Best practice round the world should be studied and copied.
– Compulsory attendance at voting places should be seriously considered.
– Introducing the vote at 16 is similarly well worth considering.
– Online consultative groups selected at random could be a useful device.
– Online monitoring and watchdogging are other ways of helping communities and voters engage with the democratic process.
– Appointing some local decision-makers by lottery may be worth trying.
– Politicians should work harder to put the real issues on the table, and engage the imaginations of their citizens.
– Civic education about democracy, particularly in schools, needs to be given more time and emphasis.
– The traditional media should be more aware of the risk of undermining democracy itself by their enthusiasm for criticism of democratic politicians and institutions.
– The reality that elections do not create democracy by themselves should be more widely recognised.
– Building a strong civil society should always be a fundamental aim of those trying to foster democracy.
– Democracies and democrats around the world should support each other and be ready to exert pressure on non-democratic countries and leaders.
– Outside intervention to bring about or restore democracy in a particular country should not be ruled out in principle, but military action could only be contemplated in extreme circumstances and on the basis of careful and informed judgment.

Conclusion

The discussion sounds gloomy, but we were reminded more than once that there were also plenty of reasons to be cheerful about the state of the world: the lifting of hundreds of millions of people out of poverty, the empowering potential of the internet for most people, and the sense of common humanity which is now more widespread than ever. Whatever its problems, democracy continues to have a huge amount to offer and is a mark of civilized advance aimed at allowing people to fulfil and express themselves, resolve problems through dialogue, not violence, and lead dignified lives. Younger generations in mature democracies are at severe risk of undervaluing such a precious gift, and of accidentally losing it. All those committed to democracy should do all in their power to prevent this from happening.

This Note reflects the Director’s personal impressions of the conference. No participant is in any way committed to its content or expression.

Ms Rajni BakshiSenior Gandhi Peace Fellow, Gateway House – Indian Council on Global Relations; Board Member: Child Rights and You (CRY) and Citizens for Peace; Executive Committee Member, Gandhi Smriti and Darshan Samiti (autonomous body under the Ministry of Culture); Associate, Centre of Education and Documentation, Mumbai and Bangalore.

INDONESIA

Dr I Ketut Putra ErawanExecutive Director, Institute for Peace and Democracy, Formerly: Special Advisor to the Minister of Foreign Affairs (2008-09); Ministry of Interior Affairs expert in developing Package Law of Politics (2006-08) and for reviewing Electoral Commission Law (2006-07).

Mrs Antonella ValmorbidaSecretary General, ALDA – The European Association for Local Democracy, Strasbourg. Formerly Chair, Committee on Democracy and Civil Society, Conference of International Non-Governmental Organisations, Council of Europe (2008-11).

NAMIBIA

Dr Alfredo Tjiurimo HengariSenior Research Fellow, South African Foreign Policy and African Drivers Programme, South African Institute of International Affairs, University of the Witwatersrand. Formerly: Chef de Cabinet and Senior Special Assistant to the Prime Minister of the Republic of Namibia (2002-03).

Professor Fuat KeymanDirector, Istanbul Policy Center; Professor of International Relations, Sabanci University. Formerly: Lecturer, Department of International Relations, Koç University (2002-10); Member, Council of Wise People (as part of Kurdish Peace Process).

UK

The Lord AldingtonVice President, National Churches Trust (2008-); Trustee, Royal Academy Trust (2003-); Chairman, 2019 Committee, New College, Oxford. Formerly: Chairman, Deutsche Bank London (2002-09). A Governor and Member of the Council of Management and Business Committee and Chairman of the Finance and General Purposes Committee of The Ditchley Foundation.

The Rt Hon. Dominic Grieve QC, MPMember of Parliament (Conservative) for Beaconsfield (1997-). Formerly: Attorney General (2010-14). A Governor of The Ditchley Foundation.

Professor Robert Hazell CBEFounder (1995) and Director of The Constitution Unit, School of Public Policy, University College London. Formerly: Director, Nuffield Foundation (1989-95).

Lord Hennessy of Nympsfield FBACrossbench Peer, House of Lords; Attlee Professor of Contemporary British History, Queen Mary College, University of London (1992-); Fellow of the British Academy. Formerly: Chairman, Kennedy Memorial Trust (1995-2000). A Governor, a Member of the Council of Management and of the Programme Committee, The Ditchley Foundation.

The Rt Hon. the Lord HowellLife Peer, House of Lords (1997-). Formerly: Minister of State, Foreign and Commonwealth Office (2010-12); Shadow Deputy Leader of the House of Lords (2005-10).

Lady Judge CBEChairman, UK Pension Protection Fund (2010-). Formerly: Chairman, United Kingdom Atomic Energy Authority; Director. News International; Commissioner, US Securities and Exchange Commission. A Governor and a Member of the Programme Committee and Business Committee, The Ditchley Foundation.

Professor Mark Warren
Harold and Dorrie Merilees Chair in the Study of Democracy, Department of Political Science, University of British Columbia. Formerly: Co-Founder, Center for Democracy and the Third Sector, Department of Government, Georgetown University.

Forests, the Magna Carta, and the ‘New Commons': Some Thoughts for the Forest Panel

Executive summary

The Coalition Government seriously underestimated the level of emotional and cultural attachment that people had to woodlands when it launched its consultation on the future of the public forest estate in early 2011.

More attention to the history of the forests and their relationship with different communities of users might have given Government advance warning of the controversy that the consultation would stir.

Claims over the forests have been contested for at least 800 years: Magna Carta (1215) contained clauses correcting abuses of forest law, and these were later amplified in a separate Charter of the Forest (1217).

Much forest land was also common land, although the commons were greatly diminished in extent by the later 19th century, and those that remained were increasingly recast as ‘public’ spaces.

Principles of commoning and common land management are now being reconsidered by historians and economists as potentially offering solutions to today’s environmental problems.

A ‘new commons’ approach might therefore be one for the independent forest panel to consider in presenting options to government for the future of the public forest estate.

Introduction

The Coalition Government’s consultation Future of the public forest estate, launched on 27 January 2011, took many by surprise. Under the proposals, the government’s official forest agency, the Forestry Commission, would have relinquished direct ownership or management of much of the land currently in its care. Commercial forest estates were to have been let on long leases to private business interests, while smaller, mixed-use and ‘heritage’ forests were to be assigned to charities or community groups. The proposals were in keeping with the general thrust of the Coalition Government’s approach to reducing the size and reach of the state and building the ‘Big Society.’ Yet it seemed that, in focusing on the forests in particular, the government had underestimated the level of emotional and cultural attachment that people had to woodlands. The call to ‘save our forests’ became a unifying cry, bringing together people of all political persuasions in opposition to the government’s plans. After a few weeks of torrid political debate Caroline Spelman, the Secretary of State for Environment, Food and Rural Affairs, was forced to halt the consultation on 17 February, and announce instead that an independent panel would review the situation and report to Government with fresh ideas.

It is unusual for an environmental issue to dominate the news headlines in this way. At the same time, that the forests caused such discord (generating more letters to ministers and MPs than the changes mooted for the NHS and higher education, for example), reminds us that affinity for the landscape, especially in its ‘traditional’ forms, runs deep in British collective culture and psyche. Moreover, public contestation over competing claims to the ownership and use of forest lands is hardly new. The forests have been a matter for public debate since at least 1217, when the Charter of the Forest was separated out from the Great Charter of Liberties (Magna Carta) and given its own legal standing. In the seventeenth century, John Evelyn’s Sylva drew attention to the depletion of the forests and called for the Restored monarchy to expand them once more. In the late nineteenth century forests were again the subject of public controversy, as places like Epping Forest were threatened with enclosure and then rescued as public amenities.

This paper considers what difference a more historically informed understanding of the relationship between people and the forests might have made to the Coalition’s plans. It also explores how options for the future management of the forests could draw on ideas of the ‘new commons’ and the traditions of common land management that existed (and still exist) in many forest areas.

Freedom and the forests

As Oliver Rackham has long observed, we need to distinguish between the legal and physical meanings of the term ‘forest’. In its legal, technical and historical meaning, a forest was an area of land over which the Crown exercised rights of hunting and timber crop, and forest law applied. A legal forest was not necessarily therefore an area of woodland. Robert Pogue Harrison suggests that the word derives from the Latin foris, meaning ‘outside’ – hence it was a term that related to a legal boundary rather than a category of landscape. Rackham notes that heaths were still being referred to as ‘forests’ in the early modern period. Forestry of course has a separate meaning, referring to the modern commercial practices of timber cultivation

Physical forests were the open wooded, wood-pasture or heath areas where deer lived, but the legal forests extended to a much wider area than this. Most of Essex, for example, was legally forest by the thirteenth century, and Rackham estimates that only about a half of the medieval forests actually comprised wooded areas. Medieval kings from William the Conqueror onwards extended the legal bounds of the forest greatly, in the interests of the hunt, from the 25 forests recorded in Domesday Book to the 143 that existed in the early thirteenth century – until, that is, King John and his successors were curtailed through Magna Carta.

Crucially, forest areas and woodlands had long local traditions of customary and communal management, at the same time as being creations of the Crown and therefore landscapes that operated in the ‘national’ interest. As Richard Mabey writes, ‘More than any other kind of landscape they are communal places, with generations of shared natural and human history inscribed in their structures’. Common rights of grazing cattle and pigs (herbage and pannage), cultivation and fuel- and wood-gathering (firebote, snap wood, turbary, lops and tops) were shared among landowners, commoners and more customary dwellers. Such rights were intensely local, dependent on custom, tradition and ecology, and confirmed through practice as much as documentation.

In Sherwood forest as late as the mid-eighteenth century poor residents of Edwinstowe ‘could supply themselves plentifully with firewood, during the whole year’, while ferns were gathered and burned in order to sell for making soap. The propertied in forest areas meanwhile were granted rights to build mills and make fishponds, dig drainage ditches and even the right to harvest honey from the hives in their trees. A complex machinery of governance kept order in the forests, from the forest justiciar, to the wardens, foresters and verderers, who upheld the draconian forest laws in the courts. Rackham observes that the physical forests were often areas of wood-pasture common land, and that the forest courts might in some places also regulate the common right.

Through Magna Carta, the barons aimed to roll back the extension of the forest lands made in King John’s time, in order to reduce the subjugation of landowners to the forest law and to promote once again their freedom to hold property under common law. The parts of Magna Carta that are most often highlighted today are those that relate to individual freedoms under the law. clauses 39 and 40 in particular have been elevated as statements of lasting, universal significance:

No freeman shall be captured or imprisoned … except by the lawful judgment of his peers or by the law of the land’ … ‘To no one will we deny or delay right or justice.

Many of the other clauses of Magna Carta in fact related to property – what happens when estates were inherited by minors, for example, or when wives were widowed. It is striking how much the text tells us about the landscape of England in 1215 – the ‘houses, parks, preserves, fish-ponds, [and] mills’ cited in clause 5 that would have been familiar sights to the authors. We can also detect ideas of stewardship and responsibility towards the land that remain relevant today. Guardians of under-age heirs, for example, are exhorted in clause 4 not to ‘take from the land of the heir’ more than is reasonably due to them, and to do this ‘without destruction and waste’, so that the productive capability of the land and its assets were passed on in good hands when the heir came of age.

Forests feature particularly strongly in Magna Carta, which also called for an inquiry into ‘all evil customs’ associated with the forests with a view to ensuring the abolition of such customs after 40 days (clause 48). When a new version of the Charter was reissued under the reign of John’s heir Henry III in 1217, the clauses relating to the forests were expanded and set into their own charter, the Charter of the Forest. The Forest Charter concerned itself with the freedoms and liberties of all those living in forest areas. Its clauses therefore disclosed the customary relationship that existed between people and the forests, and by extension the wider landscape, a relationship that was largely to be destroyed in Britain through the process of enclosure from the 16th century to the 19th century. The Charter spoke similarly to the long tradition of associating the woodlands with freedoms – the ‘liberties of the greenwood’ that Simon Schama considers in his Landscape and Memory (1995) and which gave such power and resonance to the story of Robin Hood and his outlaws from the later medieval period onwards.

Common rights and public amenity

The idea of freedom has long been associated with Magna Carta itself, though the original point of the Charter of Liberties was less to enshrine a set of personal rights and freedoms than to undo perceived and actual constraints that had been imposed by successive monarchs. Peter Linebaugh, however, in The Magna Carta Manifesto (2008), seeks to excavate the idea of the commons from the mass of documentary, legal, cultural and constitutional interpretations of Magna Carta that have arisen in the 800 years since 1215. Just as Magna Carta was co-opted as inspiration for political texts such as the US constitution and the UN Declaration of Human Rights, so Linebaugh looks to the clauses of the Magna Carta and the Forest Charter as inspiration for asserting freedoms in our relationship with the environment. In so doing, he is reclaiming the Magna Carta as a radical text, looking to it as a vindication of principles of commoning that are relevant in a wide range of contexts, from the Zapatistas in Mexico to the anti-enclosure struggles of native Americans.

Linebaugh’s thinking has accorded with that of other commentators, such as the economist Raj Patel, whose 2009 book The Value of Nothing, revivifies the concept of the commons as a means of demonstrating how resources can be valued and sustained in ways that don’t rely solely on the destructive forces of the untrammelled free market. Like many others, Patel is critical of the thesis set out in Hardin’s influential 1968 essay ‘The Tragedy of the Commons’. Using common pastureland as his example, Hardin posited that the commons are doomed to fail as a consequence of the human instinct to maximise benefits to the individual (in this case by overstocking) while avoiding the costs (externalities) that are subsequently borne by the collective in terms of the diminution of natural resources. The tragedy here is that rational calculation dictates the pursuit of such selfish behaviour, even though in the long term it serves nobody’s interest.

Hardin’s analysis has been doubted because of his failure to consider the issue of the commons in its properly historical, rather than theoretical, context. In fact, many commons were sustained for long periods of time because they were heavily regulated (though the manor courts), and only failed when the system of regulation itself went into decline (or forcible enclosure brought things to a halt).

Nevertheless, one of the striking features of mid- to late-nineteenth century campaigns to protect the last vestiges of the commons in England was their reinvention as public amenities rather than as formal commons (where rights are not universal but are held by a defined community of people). The enclosure of parts of Epping Forest, for example, gave rise to protests in the 1860s and 70s, led by local commoners supported by the recently formed Commons Preservation Society. The end result was the Epping Forest Act of 1878, which transferred ownership of the forest and the rights over it to the City of London, which has maintained it ever since largely as a recreational landscape. In this way Epping was transformed from a common, over which rights of access and resources were confined to a discrete group of local residents, to a public amenity, accessible to all. George Shaw Lefevre, the leading force behind the Commons Preservation Society, described the commons as being ‘natural parks, over which everyone may roam freely’, in the face of the fact that there was no universal right of access to commons at the time and would not be one in metropolitan areas until the 1925 Law of Property Act.

The National Trust was part of this process too. The novel idea (though inspired by developments in the USA) of a legal entity able to hold land on behalf of the wider public was first mooted by Robert Hunter, solicitor to the Commons Preservation Society, in a speech in 1884. The idea was put into practice in 1895 with the founding of the National Trust, and given statutory footing with the National Trust Act of 1907. Hunter made sure that the Act contained special provisions that guaranteed that any common land held by the Trust would remain open and unenclosed. Indeed, clause 29 of the Act specifically entreats the Trust to ‘prevent resist and abate all enclosures and encroachments upon and all attempts to enclose’ common land in its ownership, ‘by all lawful means’. Today, a quarter of the Trust’s landholdings is registered common land, 11% of the total commons in England. By contrast the Forestry Commission, established in 1919 as the official state forestry body, has focused mostly on commercial tree growing, usually in plantations of conifers and other quick-growing species.

A new commons?

Just as generations of agricultural improvers largely dismissed the commons as inefficient and wasteful harbingers of dissolute agricultural practices and loose personal morality, so it is possible at the other extreme to over-romanticise the cohesiveness and effectiveness of common land management in the past. As Patel observes, ‘Commoning did not take place in some proto-democratic Eden where everyone got a fair and equal say’. Even Patel, however, confuses common right with common ownership in suggesting that enclosure took common land ‘out of public hands’. Commons in England were always private property, over which a variety of rights (to food, fuel, building material and so on) were held by a defined group of people.

More recently policy makers have considered the traditions of common land management for ideas on how future management regimes might be constructed and conducted. Drawing on Elinor Oström’s Nobel Prize-winning work on common pool resources, Duncan Mackay has suggested that a ‘new commons’ might be created as a means of ensuring a properly sustainable relationship between people and their natural environments as well as meeting the challenges of climate change. Mackay has pioneered community orchard schemes, where orchards are owned and cared for by local people, common rights are identified and defined, and new trees are planted for each child born in the community, ‘to add to the connections between place and people through time and develop a true sense of personal meaning’.

Mackay’s ‘new commons’ thinking adapts Hunter’s description of the two driving ideas behind the open spaces movement, ‘one, that the people of this country should have some interest in the land of the country, the other, that the amenities of everyday life should be placed within reach of rich and poor alike’. At the heart of the proposal is the concept that pockets of open space on the fringes of urban settlements should be adopted as community commons, accessible to all and offering recreation, cultivation of food, and the creation of new natural habitats, not least through tree growing. Mackay sees the National Trust as a potential vehicle for achieving this vision, since it is able to hold land inalienably while the actual management of such a massive dispersed estate might be conducted through local people on ‘Big Society’ lines.

DEFRA’s consultation Future of the public forest estate did not mention commons or the deeply embedded structures of governance that exist in ancient forest areas, a major oversight given the importance of common rights to forests over the centuries. But the document did discuss community forests, and the possibility of parts of the public forest estate being sold to community groups or NGOs. Such groups, whether operating on a local or national scale, were deemed to bring ‘high levels of expertise, local knowledge and enthusiasm to the management of woods and forests’. The consultation document anticipated that such transfers were likely to apply to ‘relatively small areas of forest that have significant local value for recreation or the environment’. However, there was little detail about how such ownership arrangements would change the way forests would be managed in the longer term. Rather, community or civil society involvement in the management of the public forest estate was considered more or less a straightforward alternative to commercial leasing or ownership, with community groups left to manage areas of woodland ‘under their own objectives, subject to statutory obligations and any lease conditions which could be used to ensure continued delivery of public benefits’.

Following Mackay’s suggestion, a more active engagement with the traditions of customary and communal forms of management in the wooded commons might open up the possibility of creating ‘new commons’ formed of genuine communities of interest, with clear stakes in the long-term future of forest areas. Phillip Blond, an advocate of ‘Big Society’ thinking and Director of ResPublica, has picked up on this idea, writing in a 2011 document for the think tank that a more sustainable environment might be achieved ‘through involving local communities in the management of their green spaces and harnessing the enthusiasm of millions of people for looking after and enjoying their woodland.’ The Independent Forestry Panel established by the government in March this year would do well to look to the Charter of the Forest, as well as to the traditional forms of communal and customary forest management that have inspired recent ‘new commons’ thinking, as they develop their recommendations to government for the future of the public forest estate.

Conclusions

A 1985 pamphlet by Andrew Sullivan for the Centre for Policy Studies, Greening the Tories, observed that trees are ‘not simply large outcrops of vegetation’. Rather, they are ‘part of our social and political history … they represent moreover a sense of continuity and cultural unity that conservatives might do well not to ignore’. The pamphlet was quoted by Stephen Daniels in his 1988 essay on the ‘Political Iconography of Woodland in Later Georgian England’, a study of the symbolism that trees held for both conservative and radical writers on politics and landscape.

Hindsight is of course a wonderful thing. But a moment’s reflection on history would have highlighted how trees, woods and forests have been repeatedly deployed as metaphors in political debate and discourse. Their treatment has been used regularly as a proxy for wider issues, whether in relation to the Crown’s respect for localities and liberties, or the nation’s ability to defend itself, or the prevailing level of access to open countryside. Consideration of the competing claims to forest resources over the last 800 years might have given ministers some pause for thought as to the wisdom of their recent consultation, saving them a degree of political capital in the process.

About the author

Ben Cowell is Acting Director, External Affairs for the National Trust. He is also a trustee of The Heritage Alliance and Our Democratic Heritage. He joined the National Trust in 2008, prior to which he worked for the Department for Culture, Media and Sport. He has a PhD in history and geography from the University of Nottingham, and has written widely on issues relating to landscape, conservation and cultural policy. His book The Heritage Obsession was published by Tempus in 2008. [email protected]

Versions of the Magna Carta

The evolution of the text of Magna Carta from 1215 to 1300, showing how the original wording of 1215 was amended in 1216, and again in 1217, 1225, and 1297. Additions at each stage are showin in italic. Deletions are shown by strikethrough type.